author: BENCH, Associate Presiding Judge:

text:
    2004 UT App 111
    UNIVERSITY OF UTAH HOSPITAL and University of Utah, Plaintiffs and Appellants, v. AMERICAN CASUALTY COMPANY OF READING, PA, Defendant and Appellee.
    No. 20030070-CA.
    Court of Appeals of Utah.
    April 15, 2004.

      David G. Williams, Julianne Blanch, and Terence L. Rooney, Snow, Christensen & Martineau, Salt Lake City, for Appellants.
    Jaryl L. Reneher, Eppeson & Rencher, Salt Lake City, Alec M. Barinholtz and Jennifer Mathis, Ross, Dixon & Bell, LLP, Irvine, California, for Appellee.
    Before BILLINGS, P.J., BENCH, Associate P. J., and THORNE, J.
   OPINION

BENCH, Associate Presiding Judge:

¶ 1 The district court granted Defendant American Casualty’s (American) motion for summary judgment. Plaintiffs University of Utah Hospital and University of Utah (collectively the University) appeal. We affirm.

BACKGROUND

¶ 2 In April 1997, Abel Hepworth was admitted at the University for the surgical repair of a cerebral artery. In providing care to Mr. Hepworth, a nurse employed by the University (Nurse Broka) allegedly administered excess intravenous fluids to Mr. Hep-worth, causing his death four days later.

¶3 Following Mr. Hepworth’s death, his wife, Mrs. Hepworth, informed the University of her intention to file a medical malpractice lawsuit arising out of the care rendered to Mr. Hepworth. The University and its insurer, St. Paul Fire and Marine Insurance Company (St.Paul), began immediate settlement negotiations with Mrs. Hepworth. In June 1997, the University wrote to Nurse Broka’s personal professional liability insurer, American, and requested its participation in the settlement negotiations. American declined to participate in the negotiations, stating that Nurse Broka was an employee of the University and should be defended by the University.

¶ 4 In March 1998, the University and St. Paul reached a settlement with Mrs. Hep-worth for a total of $1,323,523. The University paid $1 million out of its Self-Insurance Trust and St. Paul paid the remaining amount. The University advised American that the matter had been settled and that the University intended to seek recovery of its settlement amount from American. American declined to reimburse the University.

¶ 5 The University ultimately filed an action against American to recover the $1 million paid out of its Self-Insurance Trust. The University sued on the basis of (1) sub-rogation, alleging breach of duty to defend Nurse Broka resulting in $8,459.20 in attorney fees, and (2) equitable subrogation, contending that American failed to pay all amounts for which Nurse Broka became legally obligated to pay, in the amount of $1 million. St. Paul filed a separate action for contribution against American, and both cases against American were consolidated.

¶ 6 Shortly thereafter, the University and St. Paul moved for summary judgment arguing that American’s insurance policy was the primary coverage for Nurse Broka and that the University was entitled to reimbursement. The following month, American moved for summary judgment claiming that (1) its contractual obligation to indemnify Nurse Broka was never triggered because Mrs. Hepworth never made a claim directly against Nurse Broka, and (2) even if a claim had been made, Nurse Broka could not be held personally liable pursuant to the Utah Governmental Immunity Act. The court agreed and granted summary judgment in favor of American. The University now takes this appeal.

ISSUES AND STANDARD OF REVIEW

¶ 7 The issues before us are essentially (1) whether American was obligated to indemnify the University under the American insurance policy, although no claim was ever made directly against Nurse Broka, and (2) whether the Utah Governmental Immunity Act shields American from responsibility.

¶ 8 On appeal from a grant of summary judgment, we “review only questions of law. We review those conclusions for correctness, according no particular deference to the trial court.” Dikeou v. Osborn, 881 P.2d 943, 945 (Utah Ct.App.1994) (quotations and citations omitted).

ANALYSIS

I. American’s obligations under its insurance policy

Duty to Defend

¶ 9 The University first contends that American has a duty to defend Nurse Broka. The American insurance policy (the policy) covering Nurse Broka provides that American has “the right and will defend any claim” with an attorney of its choice. Furthermore, the policy defines a “claim” as “the receipt by you of a demand for money or services naming you and alleging a medical incident.” Nothing in the record shows that a claim was ever made against Nurse Broka. Mrs. Hep-worth brought her wrongful death claim directly and solely against the University. At no point did Mrs. Hepworth modify her claim against the University by naming Nurse Bro-ka as a defendant, or bring a separate suit against Nurse Broka:

Duty to Indemnify

¶ 10 The University further contends that the policy requires American to indemnify Nurse Broka and the University for the monies paid for the settlement with Mrs. Hepworth. American concedes that it has a duty to indemnify Nurse Broka, but only under specific circumstances. Page five of the policy provides that American will pay amounts that Nurse Broka becomes “legally obligated to pay as a result of injury or damage caused by a medical incident” for which he is liable. In other words, if Nurse Broka is “legally obligated to pay” some amount as a result of a medical incident, then American is required to indemnify Nurse Broka.

¶ 11 Although “legally obligated to pay” is not explicitly defined in the policy, other provisions of the policy are helpful in interpreting the meaning of “legally obligated to pay.” Under the “Legal Action Limitation” provision on page two of the policy, the insured may not bring any legal action against American until “the amount of your obligation to pay has been decided. Such amount can be set by judgment against you after actual trial or by written agreement between you, us and the claimant.” 'When the phrase “legally obligated to pay” is read in conjunction with the “Legal Action Limitation” provision, we may reasonably conclude that “legally obligated to pay” occurs via a judgment following an actual trial, or an enforceable agreement between Nurse Bro-ka, ' American, and Mrs. Hepworth. See Nielsen v. O’Reilly, 848 P.2d 664, 665 (Utah 1992) (holding that “the terms of insurance contracts, as well as all contracts, are to be interpreted in accordance with their usually accepted meanings and should be read as a whole, in an attempt to harmonize and give effect to all of the contract provisions”).

¶ 12 The University argues that it became subrogated to. Nurse Broka’s rights under the policy. Effectively, the doctrine of equitable subrogation “allows a person or entity which pays the loss or satisfies the claim of another under a legally cognizable obligation or interest to step into the shoes of the other person and assert that person’s rights.” State Farm Mut. Auto. Ins. Co. v. Northwestern Nat’l Ins. Co., 912 P.2d 983, 985 (Utah 1996). However, the doctrine does not provide the subrogee any right the other party did not have. Pursuant to the policy, Nurse Broka has rights against American to defend or indemnify him when a claim is brought against him. However, no claim was ever made directly against Nurse Broka. Nor did Nurse Broka incur any costs to defend himself in connection with Mrs. Hepworth’s claims against the University. Likewise, even if the University was a valid subrogee, the University could not expect American to defend and indemnify the University because no claim was ever brought against Nurse Broka. ■ Furthermore, there has been no judicial determination of Nurse Broka’s liability to the Hep-worths nor was there any settlement in which Nurse Broka personally participated. Therefore, American is not required to indemnify Nurse Broka or the University as a matter of law.

II. The Utah Governmental Immunity Act

¶ 13 An additional basis for affir-mance is that Nurse Broka could not be held personally liable under the Utah Governmental Immunity Act (the Act). Section OS-SO-SO of the Act provides that “a governmental entity shall defend any action brought against its employee arising from an act or omission occurring: (a) during the performance of the employee’s duties; (b) within the scope of the employee’s employment; or (c) under color of authority.” Utah Code Ann. § 63-30-36 (2003). Additionally, “if a governmental entity pays all or part of a judgment based on or a compromise or settlement of a claim against the governmental entity or an employee, the employee may not be required to indemnify the governmental entity for the payment.” Id. at § 63-30-38. Contrary to the University’s assertion, we fail to see how the above provisions do not apply to this case. Nurse Broka was an employee of the University. See Frank v. State, 613 P.2d 617, 519 (Utah 1980) (holding that the University of Utah Medical Center is a governmental entity). Nurse Broka was performing his duties and acting within the scope of his employment when he provided medical care to Mr. Hepworth at the University. Therefore, Nurse Broka cannot be required to indemnify the University.

¶ 14 The University nonetheless argues that the Act does not preclude American, as Nurse Broka’s personal insurer, from indemnifying Nurse Broka and the University. The Utah Supreme Court addressed this- issue in Gulf Ins. Co. v. Horace Mann Ins. Co., 567 P.2d 158 (Utah 1977). In Gulf, a student sued a teacher for an injury sustained in a shop class. See id. The teacher demanded that the school district defend him pursuant to the Utah Public Employees Indemnification Act, which contained provisions analogous to those of the Utah Governmental Immunity Act. See id. The school district referred the matter to its insurer, Gulf, which, in turn, made demand upon Horace Mann, the teacher’s personal insurer, to defend the suit. See id. Horace Mann refused, claiming that the primary responsibility rested with the district and its insurer Gulf. See id. Gulf argued that despite the statutory immunity protection afforded under the Utah Public Employees Indemnification Act, Horace Mann, as the teacher’s insurer, still should be required to participate. See id. The Gulf court disagreed and reasoned that each of the insurers should be regarded as “standing in the shoes of its own insured and ... it is appropriate to determine who would bear the loss if no insurance existed.” Id. at 160. The court explained that “under the common law, any liability would be upon the teacher, ... and his insurer (Horace Mann) would be obliged to step into his shoes and defend him. However, the Utah Public Employees Indemnification Act has altered this.” Id. The court further explained that “the statute shifts liability to the school district,” id., while providing “that if the public entity pays such a claim, the entity cannot seek reimbursement from its employee,” Id. Just as Gulf was prevented from seeking recovery from the teacher, the University here cannot seek reimbursement or indemnification from Nurse Broka or his personal insurer American.

CONCLUSION

¶ 15 For the foregoing reasons, American is not obligated to indemnify the University for any amount.

¶ 16 We therefore affirm.

¶ 17 I CONCUR: WILLIAM A. THORNE, JR., Judge.

¶ 18 I CONCUR IN THE RESULT: JUDITH M. BILLINGS, Presiding Judge.

      . The University self-insures its employees with professional liability insurance covering up to $1 million per occurrence. St. Paul provides the University with excess liability insurance covering amounts between $1 million and $5 million.

      . On stipulation of the parties, this court dismissed St. Paul’s separate appeal.

      . The University claims that the policy was "illusory” under the Act because the policy did npt provide any real coverage. We disagree.' The policy covered all of Nurse Broka’s professional conduct, including conduct outside of his employment with the University, such as when providing nursing care to family members, friends or neighbors. Furthermore, the policy also provided assault coverage and personal liability coverage for non-business activities.

      . The Utah Public Employees Indemnification Act, now repealed, protected employees of public entities from personal liability arising from acts committed during the performance of their duties and within the scope of their employment. See Utah Code Ann. § 63-48-1 (1953). That act further provided that the employee is not liable to indemnify the public entity if the entity pays all or part of the judgment against the employee. See id. at § 63-48-5.


source: Caselaw Access Project

author: LEHMAN, Justice.

license: Public Domain

text:
    2004 WY 59
    Mark Quixote VAN HAELE, Appellant(Defendant), v. The STATE of Wyoming, Appellee(Plaintiff).
    No. 03-138.
    Supreme Court of Wyoming.
    May 25, 2004.

      Representing Appellant: James P. Cast-berg, Sheridan, WY.

      Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy. Attorney General; Robin Sessions Cooley, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] This is an appeal from a judgment finding appellant Mark Quixote Van Haele guilty of aggravated assault and battery upon the district court’s acceptance of an unconditional plea of nolo contendere under a plea agreement. In addition, Van Haele seeks relief from the district court’s refusal to allow him to withdraw his plea at the sentencing hearing. Van Haele further asserts that the district court abused its discretion when it denied his earlier motion for continuance of trial on the aggravated assault and battery charge in -order to try it with a related charge also asserted against him. Upon our review, we affirm.

ISSUES

[¶ 2] The issues, as phrased by Van Ha-ele, are as follows:

I. Was it arbitrary and capricious and an abuse of judicial discretion for the trial judge to deny appellant’s motion to reschedule jury trial in order,that both of the felony charges filed against the appellant arising out of the same incident could be tried at the same time?
II. Did the trial court commit reversible error in failing to comply with Rule 11(d) to insure that the appellant’s change of plea to “nolo contendere” was voluntary and to require that a factual basis be established before entering judgment on the defendant’s change of plea to “nolo, conten-dere” as required by Rule 11(f) of the Wyoming Rules of Criminal Procedure?
III.Was it arbitrary and capricious and an abuse of judicial discretion for the trial judge to deny appellant’s request to withdraw his plea of “nolo contendere” prior to entering conviction and passing sentence as provided by Rule 32(d) of the Wyoming .Rules of Criminal Procedure?

FACTS

. [¶ 3] On July 2,. 2001, Van Haele was charged with one count of aggravated assault and battery stemming from Van Haele’s alleged stabbing of another person in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (Lexis-Nexis 2003). Initially Van Haele pled not guilty to this charge. A trial date was then set by the district court for January 16, 2002.

[¶ 4] On January 2, 2002, Van Haele was also charged with property destruction and defacement stemming from the same altercation as the aggravated assault and battery charge. Accordingly, Van Haele filed a motion to reschedule the trial in order that the two charges could be tried together. This motion was denied.

[¶ 5] On January 16, 2002, a jury trial commenced on the aggravated assault and battery charge.' After two and a half days, during which Van Haele took the stand in his own defense, the trial " conchided. Upon deliberation, the jury was unable to reach a verdict. On March 27, 2002, the State filed its Notice of Intent to Retry Case with respect to the aggravated assault and battery charge. The district court then set a new trial date of September 16, 2002, on both the aggravated assault and battery and property destruction and defacement charges. Upon motion, the district court then, allowed Van Haele’s attorney of record to withdraw from the case on August 14, 2002.

[¶ 6] On August 27, 2002, new counsel formally entered an appearance on Van Ha-ele’s behalf and soon thereafter filed a motion to vacate and reschedule the impending trial. This motion was granted, and the district court rescheduled the trial for February 10, 2003. A plea agreement was reached on February 3, 2003, and a change of plea hearing was held on February 4, 2003.

[¶ 7] At this hearing the State explained that the parties had agreed that, in exchange for Van Haele’s plea of nolo contendere to the charge of aggravated assault and battery, the State would dismiss the property destruction and defacement charge and that the State would recommend that Van Haele be sentenced to a term of one to three years, suspended in favor of eighteen months of supervised probation. After receiving the details of the plea agreement, the district court confirmed through Van Haele that the terms of the plea agreement were correctly expressed. Van Haele further indicated that he had ample opportunity to discuss the agreement with his counsel.

[¶ 8] The court then determined that Van Haele was not under the influence of alcohol or drugs and advised Van Haele that the district court was not bound by the plea agreement, that a pre-sentence investigation report would be conducted and, thereafter, another hearing would be held so that the district court could determine if it would accept the plea. The district court further informed Van Haele that if it rejected the plea agreement, Van Haele could withdraw his plea and proceed to trial. However, if the district court accepted the plea agreement, a conviction would be entered, sentence would be imposed, and Van Haele would not be permitted to withdraw his plea. The court also explained to Van Haele some of the terms of supervised probation in the event the district court accepted the plea agreement.

[¶ 9] At that time Van Haele indicated that he still desired to change his plea and formally unconditionally pled nolo contendere to the charge of aggravated assault and battery. The district court further recognized that, because it had sat through the initial trial concerning the alleged facts related to this charge, there was an adequate factual basis to warrant acceptance of the plea.

[¶ 10] On March 27, 2003, a sentencing hearing was held, and the district court indicated that it would accept the plea agreement reached between the parties. Nevertheless, after having just confirmed his desire to proceed based upon his nolo contendere plea, Van Haele surprisingly stated that he wanted to withdraw his plea and proceed to trial. The district court denied Van Haele’s request. Judgment and sentence was entered, consistent with the plea agreement, on June 3, 2003. This appeal followed.

STANDARD OF REVIEW

[¶ 11] The procedure utilized to accept a guilty plea is reviewed by this court as a whole. Smith v. State, 871 P.2d 186, 187 (Wyo.1994). “Our inquiry determines if the district court sufficiently described the nature of the charges, including the possible penalties; informed the defendant of the right to representation; informed the defendant of the rights waived by a guilty plea; and obtained a factual basis for the plea.” Mehring [v. Stale l 860 P.2d [1101] at 1106 [ (Wyo.1993)] (emphasis added). These procedural requirements are intended to assure that the individual facing the criminal charges is not misled into an unintentional waiver of substantial rights. Id.
McCarty v. State, 883 P.2d 367, 372 (Wyo.1994). We look to the totality of the circumstances to determine the voluntariness of a plea. Mehring v. State, 860 P.2d 1101, 1108 (Wyo.1993).

Reyna v. State, 2001 WY 105, ¶ 9, 33 P.3d 1129, ¶ 9 (Wyo.2001).

[¶ 12] The standard of review for determining the voluntariness of a plea is de novo.

The United States Supreme Court’s standard, by which the voluntariness of guilty pleas is measured, is as follows: “[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g.bribes).”
Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1957), rev’d on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958)).

Rude v. State, 851 P.2d 20, 23 (Wyo.1993). Furthermore, W.R.Cr.P. 11(d) requires that this same inquiry as to voluntariness must be made when a defendant pleads “nolo conten-dere.”

[¶ 13] In Rude v. State, 851 P.2d 15, 18 (Wyo.1993), we noted that W.R.Cr.P. 15(f) (Rule 11 under the present rules) requires a court to satisfy itself that a factual basis exists for a guilty plea- before accepting such plea. Moreover, we recognized that in them treatise on criminal procedure, LaFave and Israel outlined the following purposes of inquiry into the factual basis:

Most importantly, it should protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.... In addition, the inquiry into the factual basis of the plea provides the court with a better assessment of defendant’s competency and willingness to plead guilty and his understanding of the charges, increases the visibility of charge reduction practices, provides a more adequate record and thus minimizes the likelihood of the plea being successfully challenged later, and aids correctional agencies in the performance of their functions.

Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 938 (2d ed.1992). These purposes are served if the record discloses a factual basis composed of the defendant’s testimony and admissions and/or the State’s presentation of evidence.' The trial judge may properly draw inferences from the defendant’s admissions or the evidence presented by the State to satisfy all elements of the crime to which the defendant is pleading guilty. Rude, at 18. However, this court has clarified that a factual basis is unnecessary upon acceptance of a nolo contendere plea, so long as the charging document, whether it be an information, indictment, or other charging form, contains an accurate and complete statement of all the elements of the crime charged. Peitsmeyer v. State, 2001 WY 38, ¶ 7, 21 P.3d 733, ¶ 7 (Wyo.2001).

[¶ 14] An abuse of discretion standard is appropriate when determining whether an appellant should have been allowed to withdraw his plea.

A motion to withdraw a guilty plea, such as that filed here, is governed by W.R.Cr.P. 32(d) which provides that if a motion for withdrawal of a guilty plea is made before sentence is imposed, the court may permit withdrawal upon a showing by the defendant of any fair and just reason. A defendant has no absolute right to withdraw a plea of guilty before sentence is imposed, and where the strictures of W.R.Cr.P. 11 have been met, and the defendant intelligently, knowingly, and voluntarily entered into his plea of guilty, the district court’s decision to deny such a motion is within its sound discretion. Bur-dine v. State, 974 P.2d 927, 929-30 (Wyo. 1999); 3 Charles Alan Wright, Nancy J. King & Susan R. Klein, Federal Practice and Procedure: Criminal 2d § 538 (1982 and Supp.2001). Seven factors have been suggested as pertinent to the exercise of the court’s discretion: (1) Whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (3) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether - the withdrawal would waste judicial resources. 3 Wright, King & Klein, Federal Practice and Procedure: Criminal 2d § 538 (Supp.2001); United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir.2000).

Doles v. State, 2002 WY 146, ¶ 11, 55 P.3d 29, ¶ 11 (Wyo.2002) (quoting Frame v. State, 2001 WY 72, ¶ 7, 29 P.3d 86, ¶ 7 (Wyo.2001)). Wyoming Rule Criminal Procedure 32(d) similarly addresses the withdrawal of nolo contendere pleas, providing that if a motion for withdrawal of a plea of nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.

[¶ 15] Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regal’d to what is right under the circumstances and without doing so arbitrarily or capriciously. Belden v. State, 2003 WY 89, 1127, 73 P.3d 1041, ¶ 27 (Wyo.2003); O’Brien v. State, 2002 WY 63, ¶ 27, 45 P.3d 225, ¶ 27 (Wyo.2002); Vaughn ¶. State, 962 P.2d 149, 151 (Wyo.1998). We will not overturn a district court’s discretionary decision unless the court acted in a manner exceeding the bounds of reason and could not rationally conclude as it did. Billingsley v. State, 2003 WY 61, ¶ 9, 69 P.3d 390, ¶9 (Wyo.2003); English v. State, 982 P.2d 139, 143 (Wyo.1999); Simmers v. State, 943 P.2d 1189, 1197 (Wyo.1997).

DISCUSSION

Denial of Motion for Continuance

[¶ 16] On July 2, 2001, Van Ha-ele was charged with aggravated assault and battery stemming from his alleged stabbing of another person with a Leatherman tool. A trial date of January 16, 2002, was then set by the district court for this charge on September 7, 2001. Six months later and just prior to trial, Van Haele was charged on January 2, 2002, with property destruction and defacement stemming from the same altercation as the aggravated assault and battery charge. Accordingly, Van Haele filed a motion to reschedule the trial in order that the two charges could be tried together. This motion was denied. Van Haele asserts that the district court abused its discretion when it denied his motion for continuance of trial.

[¶ 17] In Taylor v. State, 2003 WY 97, ¶ 11, 74 P.3d 1236, ¶ 11 (Wyo.2003), we recognized:

We have consistently held that an unconditional guilty plea waives an appellate review of non-jurisdictional claims. Kitzke v. State, 2002 WY Í47, ¶ 8, 55 P.3d 696, 699 (Wyo.2002). The only claims that remain are those that go to the jurisdiction of the court or the voluntariness of the plea. Id. (citing Wilson v. United States, 962 F.2d 996, 997 (11th Cir.1992)).
Examples of jurisdictional defects are unconstitutionality of the statute defining the crime, failure of the indictment or information to state an offense, and double jeopardy. Non-jurisdictional defects include the use of inadmissible evidence, the use of unlawfully obtained statements, a claim that a grand jury was improperly convened and conducted, and a claim of violation of the right to speedy trial.
Kitzke, ¶ 9 (citations omitted).

[¶ 18] We further explained in Nixon v. State, 2002 WY 118, ¶24, 51 P.3d 851, ¶24 (Wyo.2002):

The need for finality in criminal cases when a defendant has voluntarily and knowingly agreed to plead guilty has been recognized on a number of occasions by this Court. When considering the circumstances under which a defendant may appeal after entering into an agreement to plead guilty, this Court has recognized the need for finality in holding that an individual may only raise issues concerning either the jurisdiction of the trial court or the voluntariness of the plea. In that regard, this Court has stated:
In reaching this result, we are aware of the argument that, for the sake of judicial economy, a criminal defendant should not be forced to go to trial merely to preserve his right to appeal pretrial objections. United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 (2d Cir.1967). However, against that interest, we must weigh the need for finality in the judicial process.
“A guilty plea should mark the end of a criminal case, not a gateway to future litigation. More than a confession, a guilty plea signals defendant’s ‘intention not to litigate the question of his guilt, and necessarily involves the surrender of certain constitutional rights_Peo-ple v. Taylor, 65 N.Y.2d 1, 489 N.Y.S.2d 152, 154, 478 N.E.2d 755, 757 (1985), quoting People v. Lynn, 28 N.Y.2d 196, 201-02, 321 N.Y.S.2d 74, 269 N.E.2d 794 (1971).
Sword v. State, 746 P.2d 423, 426 (Wyo.1987). In addition, in Smith v. State, 871 P.2d 186, 188 (Wyo.1994), this Court noted:
A guilty plea prohibits appellate review of all but a few defenses. Ochoa v. State, 848 P.2d 1359, 1361-62 (Wyo.1993); Sword v. State, 746 P.2d 423, 425 (Wyo.1987).
“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”
Davila v. State, 831 P.2d 204, 206 (Wyo.1992) (quoting Zanetti v. State, 783 P.2d 134, 138 (Wyo.1989) and Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973)).

[¶ 19] Some time after filing his motion for continuance of new trial, Van Haele entered an unconditional plea of nolo contendere to the charge of aggravated assault and battery. In such circumstances, an unconditional plea of nolo contendere is tantamount to an unconditional plea of guilty. Ochoa v. State, 848 P.2d 1359, 1361, (Wyo.1993); State v. Steele, 620 P.2d 1026, 1028 (Wyo.1980). Further, the charge of property destruction and defacement was dismissed- under the plea agreement the district court ultimately accepted.

[¶ 20] Due to his plea, Van Haele waived all issues but those related to jurisdiction and voluntariness. The denial of a continuance being neither, we will not address Van Ha-ele’s first raised issue on appeal.

Voluntariness of Plea/Factual Basis For Plea

[¶ 21] Van Haele contends that the district court did not substantiate that his plea of nolo contendere to the charge of aggravated assault and battery was made voluntarily or that a sufficient factual basis supported the plea. In the acceptance of a plea of nolo contendere, a judge is required to follow the dictates of the Wyoming Rules of Criminal Procedure, in general, and W.R.Cr.P. 11, in particular. Rule 11 acts as a guideline for courts in determining that a plea by a defendant is intelligent, knowing and voluntary, and that the plea has been entered with an understanding of the consequences. Ingalls v. State, 2002 WY 75, ¶¶ 10-11, 46 P.3d 856, ¶¶ 10-11 (Wyo.2002).

[¶ 22] We have also stated:

A guilty plea must be “knowing and voluntary.” McCarty v. State, 883 P.2d 367, 372 (Wyo.1994) (quoting Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992)). “The validity of a guilty plea is tested by determining ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” McCarty at Id. (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)).

Becker v. State, 2002 WY 126, ¶ 11, 53 P.3d 94, ¶ 11 (Wyo.2002).

[¶ 23] Van Haele’s contention that his nolo contendere plea was involuntary is not persuasive. At the change of plea hearing, the State provided the district court with details of the plea agreement, including the sentencing recommendation and restitution amounts. After receiving the details of the plea agreement, Van Haele confirmed that the terms of the plea agreement were correctly expressed. Van Haele further indicated that he had ample opportunity to discuss the agreement with his counsel.

[¶24] The court then made inquires to determine that Van Haele was not under the influence of alcohol or drugs. The district court also explained to Van Haele that it was not bound by the plea agreement, that a presentence investigation report would be conducted and, thereafter, another hearing would be held so that the district court could determine if it would accept the plea agreement. The district court further advised Van Haele that if it rejected the plea agreement, Van Haele could withdraw his plea and proceed to trial. However, if the district court accepted the plea agreement, a conviction would be entered, sentence imposed, and Van Haele would not be permitted to withdraw his plea. The court also explained to Van Haele that his plea would entail the loss of certain civil rights, which the district court noted had been discussed with Van Haele at previous proceedings. The district court further summarized some of the terms of his supervised probation should the district court accept the plea agreement.

[¶ 25] At that time Van Haele indicated that he affirmatively desired to change his plea and formally plead nolo contendere to the charge of aggravated assault and battery. In particular, after the above detailed admonishments were given, the following transpired:

THE COURT: Well, what do you think you want to do, Mr. Van Haele? Do you want to change your plea in hopes this agreement will go through, or do you want to go to trial?
[VAN HAELE]: Change my plea, Your Honor.
THE COURT: All right, sir, would you please stand.
As to the charge that on or about June 29, 2001 here in Sheridan County, Wyoming you did attempt to cause or intentionally or knowingly did cause bodily injury to [the victim] in violation of our aggravated assault and battery statute, how do you plead?
[VAN HAELE]: Guilty.
[VAN HAELE’S COUNSEL]: Say “nolo contendere.”
THE COURT: All right, you may be seated, Mr. Van Haele.

Thus, we conclude that Van Haele’s plea of nolo contendere, to the charge of aggravated assault and battery was intelligent, knowing and voluntary, and that such plea was entered with Van Haele’s understanding of the consequences.

[¶ 26] Van Haele further argues that the district court did not obtain a sufficient factual basis concerning his nolo con-tendere plea. The record on appeal discloses that the district court did not question Van Haele about the factual basis establishing Van Haele’s nolo contendere plea at the change of plea hearing. Rather, the district court commented as follows:

Because this Court has sat through the one trial concerning the alleged facts in this case, I believe there is an adequate factual basis to accept the Defendant’s plea of no contest.

[¶ 27]. It is true that W.R.Cr.P. 11(f) provides that notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment on a guilty plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. Ingalls, at ¶ 11. However, the factual basis for accepting a plea may be inferred from circumstances surrounding the crime and need not be established only from the defendant’s statements. Anderson v. State, 2002 WY 46, ¶ 32, 43 P.3d 108, ¶ 32 (Wyo.2002) (citing Barnes v. State, 951 P.2d 386, 388-89 (Wyo.1998); Rude v. State, 851 P.2d at 17-18). Rule 11(f) does not require proof beyond a reasonable doubt that a defendant who pleads is actually guilty; the rule’s standard is much lower. Reyna, ¶ 14 (citing United States v. Webb, 433 F.2d 400, 403 (1st Cir.1970) and McCoy v. United States, 363 F.2d 306, 308 (D.C.Cir. 1966)). Rule 11(f) merely requires the court to satisfy itself that a factual basis exists for the guilty plea before accepting such plea. Lee v. State, 2001 WY 129, ¶ 14, 36 P.3d 1133, ¶ 14 (Wyo.2001) (citing Rude, at 7). Additionally, this court has expressly held that the above-cited requirements do not apply in the acceptance of á plea of nolo contendere, so long as the charging document, whether it be an information, indictment, or other charging form, contains an accurate and complete statement of all the elements of the crime charged. Peitsmeyer, ¶ 7.

[¶28] In support of this position, this court noted:

At one time in the past the Advisory Committee on Criminal Rules proposed that a plea of nolo contendere not be accepted without the court first satisfying itself that the defendant committed the crime charged. This overlooked the fact that an innocent defendant may not wish to contest the charge and that the nolo plea is a means for him or her to do this. Accordingly that proposal was not adopted and Rule 11(f), requiring the court to determine the accuracy of a plea, applies to guilty pleas but not to pleas of nolo conten-dere.
1A Charles Alan Wright, Federal Practice and Procedure: Criminal 3d § 177 (1999).
We embrace that proposition because any other reading of W.R.Cr.P. 11(f) would obliterate the distinction between a plea of guilty and a plea of nolo contendere. State v. Steele, 620 P.2d 1026, 1028 (Wyo.1980); State v. Merino, 81 Hawai'i 198, 915 P.2d 672, 691-92 (1996). Thus, we expressly hold that a district court need not obtain a factual basis when accepting a plea of nolo contendere, so long as the charging document, whether it be an information, indictment, or other charging form, contains an accurate and complete statement of all the elements of the crime charged.

Peitsmeyer, at ¶¶ 6-7.

[¶ 29] Here, the information expresses an accurate and complete statement of the elements of the charge of aggravated assault and battery. In addition, the affidavits of probable cause made a part of the information give detailed descriptions of the events that were alleged to have occurred on the evening in question.

[¶ 30] Upon reading the transcript of the initial trial, however, we conclude that Van Haele, himself, provided an adequate factual basis to support his nolo contendere plea to the aggravated assault and battery charge. Specifically, Van Haele clearly admitted that after he kicked in the doors of the victim’s vehicle, a fracas ensued between himself and the victim. Thereafter, Van Haele realized that a Leatherman tool was in his pocket so he unfolded it under his belly and stabbed the victim. Moreover, both the victim and Ms. Van Haele gave their eyewitness testimony substantiating these facts. Numerous other witnesses who later arrived at the scene testified they saw that the victim had been stabbed and Van Haele admitted to them that he had stabbed the victim. The Leatherman tool was found at the scene and was identified as being in Van Haele’s possession. Additionally, Dr. Walter H. Gould testified that the stabbing wound resulted in the laceration of the victim’s skin and lung causing bleeding into the chest cavity, which had to be drained. The victim was required to stay in the hospital for four days as a result of the injury he sustained. The record is sufficient to support the district court’s conclusion that a factual basis existed for Van Haele’s nolo contendere plea to aggravated assault and battery even though a factual basis was not required.

Withdrawal of Plea

[¶ 31] Finally, Van Haele complains that the district court abused its discretion when it refused to allow him to withdraw his nolo contendere plea at the sentencing hearing. Van Haele contends the district court erred in failing to even make an inquiry into the reason why he wanted to withdraw his plea.

[¶ 32] At the sentencing hearing the following transpired after Van Haele noted certain areas within the pre-sentence investigation report with which he disagreed:

THE COURT: Well, the Court is very familiar with the ease and is prepared to approve the plea agreement. Anything else you want, counsel?
THE COURT: Mr. Van Haele, is there anything you’d like to say to the Court before the sentence is imposed?
[VAN HAELE]: I would — I would really like to revoke that plea and have a jury trial again.
THE COURT: You may be seated, Mr. Van Haele.
Mr. Van Haele, the Court is satisfied that you have been given all possible advise-ments concerning your rights and how the procedure would work in this case. At the change of plea hearing I explained to you that if the plea agreement is accepted, which I have just done, a conviction would be entered against you; you would not be permitted to withdraw your plea and you would be sentenced pursuant to the terms of the agreement.
So, based on advisements that have been given since July of 2001, I would deny a request to allow you to withdraw your plea of no contest.
Anything else?
[VAN HAELE]: No.

[¶ 33] Regarding the seven factors guiding the district court’s discretion, it may be said from this record: (1) Van Haele’s assertion of innocence was his original plea of not guilty; he confessed to witnesses after the incident and at the initial trial to having stabbed the victim with the Leatherman tool, however at trial he claimed self-defense; (2) the government would likely suffer prejudice from a plea withdrawal because the crime involved occurred almost a year and a half earlier; (3) Van Haele delayed making any motion to withdraw his plea of nolo contende-re for nearly two months after formally entering such plea and did so only after the district court indicated that it was going to approve the plea agreement at his sentencing hearing; (4) such delay would substantially inconvenience the court; (5) there is nothing to suggest the assistance of Van Haele’s counsel was inadequate or unavailable; (6) the nolo contendere plea was accepted after thoroughly establishing its knowing and voluntary character; and (7) withdrawal of the plea would obviously squander not only judicial resources but the time and efforts of the prosecutor and defense attorney.

[¶ 34] Van Haele failed to supply the district court with any fair and just reason for withdrawing the nolo contendere plea, and the record manifestly demonstrates compliance with W.R.Cr.P. 11 in accepting the plea. Van Haele is critical that the district court erred in failing to make a specific inquiry into the reason that Van Haele wanted to withdraw his plea. Nevertheless, the district court allowed Van Haele an opportunity to do so by inquiring if Van Haele had anything further to add. Therefore, we conclude that denying the motion was a sound exercise of the court’s discretion.

CONCLUSION

[¶ 35] For the foregoing reasons, the conviction of Van Haele and related sentence are affirmed.

      . Wyo. Stat. Ann. § 6-2-502(a)(ii) (LexisNexis 2003) provides:
      (a) A person is guilty of aggravated assault and batteiy if he:
      (ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]
      Wyo. Stat. Ann. § 6-l-104(iv) (LexisNexis 2001) defines "deadly weapon” as, but not limited to, "a firearm, explosive or incendiary material, motorized vehicle, an animal or other device, instrument, material or substance, which in the manner it is used Or is intended to be used is reasonably capable of producing death or serious bodily injury.”

      . On appeal, Van Haele is represented by his initial counsel of record who originally was allowed to withdraw from this case on August 14, 2002.

      . W.R.Cr.P. 11 states, in pertinent part:
      (a) Alternatives.—
      (1) In General.' — A defendant may plead not guilty, not guilty by reason of mental illness or deficiency, guilty, or nolo contendere.... (A) Nolo Contendere.' — A defendant' may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.
      (d) Insuring That Plea Is Voluntary. — The court shall not accept a plea of guilty or nolo conten-dere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. . The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the state and the defendant or the defendant’s attorney.

      . At Van Haele's arraignment hearing concerning the aggravated assault and battery charge, he was plainly informed by the district court that in the event he was found guilty at trial, or if he pled guilty, he could be imprisoned for up to ten years, fined up to $10,000, or both and that he would be subject to a surcharge assessed to the Victims Compensation Fund of at least $100. He was further advised that if he pled guilty, he would waive his right to trial, the right to present and confront witnesses, the right to present evidence in his defense, and the right to object to any evidence presented. He was also advised that he would waive his right to remain silent, that he would lose his rights to vote, own firearms, serve on juries, and hold public office, as well as other consequences. Critically, he was specifically advised that if he pled no contest or polo contendere and such plea was accepted by the district court, he would be sentenced just the same as if he had pled guilty.


author: HILL, Chief Justice.

text:
    2004 WY 60
    JRS, Appellant (Plaintiff/Petitioner), v. GMS, Appellee (Defendant/Respondent).
    No. 03-111.
    Supreme Court of Wyoming.
    May 26, 2004.
    Representing Appellant: Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, WY.
    Representing Appellee: GMS, Pro se.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶ 1] Appellant, JRS (Father), seeks review of an order of the district court denying his petition to modify a divorce decree so as to grant him primary custody of all four of his minor children. Appellee, GMS (Mother), did not file a brief in this appeal. In the district court proceedings she also filed a petition seeking custody of all four children. The district court found that neither party had demonstrated a material change of circumstances and maintained the status quo, continuing the parties’ original stipulation that Father would have custody of the two older children, and Mother would have custody of the two younger children. We will reverse and remand for additional proceedings.

ISSUE

[¶ 2] Father poses this issue for our consideration:

Whether the district court erred when it found that there was no substantial and material change of circumstances as required by law to modify the Stipulated Decree of Divorce and denied [Father’s] Petition for Modification of Decree of Divorce.

FACTS AND PROCEEDINGS

[¶ 3] The district court entered its stipulated decree of divorce on October 5, 2000. Custody of the parties’. four children was established in the stipulation. Father was awarded custody of the parties’ two older children, born May 9,1990, and February 15, 1992. Mother was awarded custody of the parties’ two younger children, born January 9, 1995, and May 1, 1997. Visitation rights were detailed in the decree. The decree included a section devoted to “PARENTAL COOPERATION PROVISIONS:”

Each parent shall:

a. Exercise discretion and cooperate with each other in exercising custodial and visitation rights so the best interest of the children is served.
b. Make every reasonable effort to insure that the children have free access to and unhampered contact with both parents.
c. Encourage the free and natural development of the children’s love and respect for both parents and do nothing which may estrange the children from the other párent, or injure the opinion of the' children as to the other parent.
d. Keep each other informed as to the location and phone number of the children at all times.
e. Promptly notify the other of any illness, accident or other circumstance seriously affecting the health or welfare of the children. Both parents shall have unlimited visitation privileges, consistent with the circumstances, for so long as the emergency situation continues.
f. Be entitled to complete information from any physician, dentist, psychologist or other specialist attending to the children for any reason whatsoever and shall be entitled to copies of any reports rendered by any such specialist. Neither parent shall do anything to frustrate the other parent’s access to any health care records relating to the children.
g. Be entitled to complete detailed information from any teacher, school or college and shall be entitled to copies of all reports or records with respect to the children’s education.
h. Consult with each other with respect to all matters of major importance affecting the welfare of the children.

[¶ 4] Initially, there were no difficulties with visitation because both parents continued to reside in Crook County. Not long after the divorce, Mother moved from Crook County to Belle Fourche, South Dakota. Father testified that Mother became uncooperative in allowing visitation. In addition, after the divorce, Father was convicted of battery on his former wife, and traveling to South Dakota was difficult for him because he had to get permission from his probation officer to leave Wyoming and go into another state. Mother would not agree to bring the children to, and pick them up from, the border. Mother denied parts of these assertions. The record reflects that neither parent had a very good specific memory, nor any meaningful records, so as to clarify what visitation had or had not occurred.

[¶ 5] On July 8, 2002, Father filed a petition to modify the divorce decree so as to give him primary custody of all four children. He asserted that there had been a material change of circumstances and that it was in the best interests of the children to be in his primary custody. Wyo. Stat. Ann § 20-2-204(c) (LexisNexis 2003) provides:

(c) A court having jurisdiction may modify an order concerning the care, custody and visitation of the children if there is a showing by either parent of a material change in circumstances since the entry of the order in question and that the modification would be in the best interests of the children pursuant to W.S. 20-2-201(a). In any proceeding in which a parent seeks to modify an order concerning child custody or visitation, proof of repeated, unreasonable failure by the custodial parent to allow visitation to the other parent in violation of an order may be considered as evidence of a material change of circumstances.

On that same date, Father also filed a motion for a temporary restraining order, seeking protection for the children in Mother’s custody. That motion was premised on allegations that the parties’ youngest daughter had been sexually molested by both Mother’s fi-ancé and her brother. The district court issued a temporary restraining order on July 10, 2002. From that date forward, Mother did not have custody of any of the children, and her visits with the children have been supervised. On September 24, 2002, the district court continued the temporary restraining order pending further information being provided to the court.

[¶ 6] On December 27, 2002, Mother filed an answer to Father’s amended petition for modification of the custody arrangements, and in that document also asked that custody be modified to award her custody of all four children.

[¶ 7] In January of 2003, all four children were removed from Father’s home when substantiated allegations of child abuse were leveled against Father’s new wife (Stepmother). Although Father was not accused of inflicting any abuse on his children, he was found to have failed to protect his children from Stepmother. Father complied with the case plan put into effect by DFS and eventually he regained custody of all four children. Stepmother is not permitted to have any contact with the children, but Father continues to be married to her and has maintained a relationship with her. In light of all these circumstances, a DFS professional who managed the child abuse case testified that placing the children in Mother’s full-time care and control would not be in the best interests of the children and that the children expressed a preference to be with Father. Her observations were that the relationship between Mother and the children was strained, and that the children preferred to live with Father. It is a condition of the DFS case plan that Stepmother not be allowed near the children,- and Father testified that he would honor that condition.

[¶8] A guardian ad litem (GAL) was appointed to represent the children. In a report received by the district court the day before trial on these matters began, the GAL summarized his investigation and offered some concrete suggestions to the district court:

Impressions
While all information received was dutifully weighed in preparing my report, I found the comments of and observations of Pam Andrews at CASA, the thoughts and observations of [RS — Father’s brother] and the more candid comments of [Father] to be of particular importance in forming my impressions in this matter. If this were a case of first impression with neither party having significant others in their lives complicating their current situations, I would be inclined to say that [Father] is the better parent: But even then, I share [RS’s] concern that given the number of children, their age’s and [Father’s] work schedule, for him to have primary custody of all the children could present problems. More importantly, this is not a case of first impression. The parties both have significant others, who to one extent or another continue to be a part of their lives, which cause me great concern.
I have no problem in- concluding that [Stepmother] should be no where near .the parties’ children now or in the foreseeable future. Unfortunately, this is easier said than done as [stepmother] appears to continue to be lurking in the shadows of [Father’s] life and as I do not feel comfortable that [Father] is anywhere close to choosing his children’s welfare over the presence and opinions of [stepmother]. While less is known about [BB — Mother’s fiancé] and his interactions with the parties’ children, I likewise feel, despite [Mother’s] claims to the contrary, [BB] continues to be a significant part of [Mother’s] life. Though the allegations of sexual impropriety initially leveled against [BB] may be inconclusive enough to prevent the filing of criminal charges, nevertheless I cannot completely ignore this concern. Further, I- find [RS’s] observations of [BB] as having .a quick temper and the admitted use of a cheese board to spank the parties’ youngest child as indications that [BB] is not a positive aspect of the children’s lives.
I find no easy or good solution to this case. Neither parent before or since their divorce presents a picture of the other that does not raise with me concerns regarding the safety and well being of their children. The parties originally chose, whatever the circumstances may have been, to enter into a split custody arrangement regarding. their children. With the notable exception of the problems involving weekend visitation, until the appearance of the parties’ respective significant others this arrangement seemed to be working relatively well. Again, in stating this impression I rely on the comments and observations of [RS] as well as the comments of the parties themselves. [Father] has expressed á concern regarding [Mother’s] drinking both predating and since the parties’ divorce, though he admits that he only has random comments of the parties’ children since their divorce to support these concerns. [Mother] has denied drinking is a problem in her life or that she drinks around the children. As [Mother] has volunteered she has no need to have alcohol in her home, and as there should be nó circumstance where she would feel compelled to drink in the presence of the children, erring a little on the safe side, I would recommend that there be no alcohol in the home of [Mother] at any time and that she not consume or have alcohol still present in her system at any time that the children are with her.
My final impression as a matter of fact and law is that if we were able to consider the parties to this case without consideration of their significant others the change of circumstances in their lives would be insufficient to support a change one way or the other 'concerning primary custody of the parties’ children.
Conclusion
In conclusion, I would recommend the following:
1. That the split custody of the parties’ children as set forth in the parties’ Divorce Decree remain in place.
2. That the exchange of the' children for all visitation take place at a neutral location in Moorcroft, which is approximately half way between the parties’ present locations. Any party refusing to cooperate or otherwise put their best efforts forward in insuring that visitation exchanges take place as order[ed] should be held in contempt of court and held responsible for the other partyí’s] cost, including reasonable attorney fees, in bringing any action to enforce such visitation exchanges. Feeble excuses as to why an exchange did not take place should not be, tolerated given the history of the problem regarding exchanges and the desire of the children to spend as much time as possible in each others company.
3. [Stepmother] shall have no contact direct or indirect at any time with the children of the parties.
4. [BB] should have no contact direct or indirect at any time with the parties’ children.
5. [TB — Mother’s brother] should have no contact direct or indirect at any time with the parties’ children.
6. That [Mother] shall not use or consume alcohol at any time any of her children are in her presence. Further, that [Mother] shall at no time have alcohol in her residence.
7. Each party shall be responsible for their own attorney fees in this matter and for paying their share of the Guardian Ad Litem fees as may be approved and directed by the court.
8. That any order coming, out of the Sheridan County Juvenile Court pending juvenile action directed towards the parties should constitute additional conditions to this court’s order while the Sheridan County matter remains open.
9. The parties should continue with and complete the parenting classes they are enrolled in, including any follow up recommendations that may come from this program.

1 [¶ 9] The district court made oral findings to the effect that neither party had met the burden of demonstrating a material change of circumstances that justified altering the district court’s original decree. In addition, the district court found that neither party had abused the children, but that both had been blind to what had been done by others. The district court declined to adopt many of the recommendations made by the GAL, indicating that it would not, and could not, micro-manage this case. The order denying the petitions to modify the divorce decree provided this guidance:

4. Since their divorce, both parties have moved increasing the distance between their homes.
5. Since their divorce, both parties have brought new caretakers into the children’s lives who have abused the children. There is no evidence that either parent has abused the children, but that they have turned a blind eye to the abuse and excessive discipline dispersed by [Stepmother] and [Mother’s] fiancé. The parents now minimize or attempt to rationalize such behavior and are less than committed to making changes necessary to remove the abusers from the children’s lives.
6. These changes are not substantial and material as required by law for purposes of granting either party the relief they seek.
7. The recommendations of the Guardian ad Litem, which also finds there is no change of circumstance should be adopted. However, the recommendations of the GAL regarding contacts with third parties and limitations on alcohol use would require the Court to micro-manage this case and the Court will not do so.
9. The terms and conditions of the Stipulated Decree of Divorce should not be modified.
10. The Temporary Restraining Order entered in this matter on July 8, 2002 should be rescinded.
11. Legal and physical custody of the two youngest children should be returned to [Mother] subject to final adjudication of Sheridan County Juvenile Case No. J-l-1-03. Any supervision by the Department of Family Services in the on-going juvenile action in Sheridan County, Wyoming should focus on reunification of both families, not just [Father’s] home.

STANDARD OF REVIEW

[¶ 10] In custody matters, the welfare and needs of the children must be given paramount consideration. That which is in the best interests of the child is a question for the trier of fact, and we will not overturn the decision of a trial court unless we are persuaded that an abuse of discretion is present or that there has been a violation of some legal principle. Reams v. Reavis, 955 P.2d 428, 431 (Wyo.1998). When we are asked to review the action of a district court, in the context of the abuse of discretion standard, the core of the inquiry we must make is the question of the reasonableness of the choice made by the trial court. Judicial discretion is a composite of many things. Among these are conclusions drawn from objective criteria. It means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. We must ask whether or not the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. Cobb v. Cobb, 2 P.3d 578, 579 (Wyo.2000) (quoting Thomas v. Thomas, 983 P.2d 717, 719 (Wyo.1999)). The party seeking to modify established child custody provisions of a divorce decree has the burden of showing that a material change in circumstances that affects the child’s welfare occurred subsequent to the entry of the initial decree, that the change warrants modification of the decree, and that the modification will be in the best interests of the affected child. Cobb, 2 P.3d at 579-80 (quoting Sorensen v. May, 944 P.2d 429, 432 (Wyo.1997)).

[¶ 11] A child’s preference as to custody may be considered by the trial court:

In determining the weight to be given a child’s preference several factors should be considered: the age of the child; the reason for the preference; the relative fitness of the preferred and non-preferred parent; the hostility, if any, of the child to the non-preferred parent; the preference of other siblings; and whether the child’s prefer-enee has been tainted or influenced by one parent against the other.
Although custodial preference is not conclusive, the court here was entitled to give more consideration to a fifteen-year old girl’s preference than say, the preference of a six-year old child.

Yates v. Yates, 702 P.2d 1252, 1256 (Wyo.1985).

DISCUSSION

[¶ 12] We are unable to agree with the district court that there was not a material change in circumstances in this case. Mother’s relocation to South Dakota might well have been viewed as a material change. The testimony the district court heard was that the unusual custody arrangements to which these parents agreed (it was not fashioned by the district court), worked only so long as the parents both resided in Crook County and were close enough to each other to make it functional. It did not work once Mother was in South Dakota, sometimes without a car to transport- the children, and Father was not free, nor was he always able, to travel to South Dakota to facilitate visitation. That Mother’s fiancé, and her brother, were accused of sexually assaulting the parties’ youngest daughter also might well have been viewed as. a material change of circumstances. There was another potential material change when the youngest children were uprooted from Mother’s home, and sent to live in Sheridan County with Father’s new wife, the parties’ two other children, and Stepmother’s three children. There was likely a material change of circumstance when all four children were taken from their home and placed in DFS custody (in a group home) as a result of Stepmother’s abusive acts against the children. There were potential material changes of circumstance when the children were placed in the custody of Father’s mother and stepfather, and when Father was finally accorded full custody again, with his mother and stepfather providing a backup for Father. This list of changes in circumstances is not meant to be exhaustive. While any one of them might well have served to require the district court to reconsider a more suitable custodial arrangement for the children, the totality of these circumstances requires a remand for the district court to fully address the needs of these children with respect to custody. For a more complete discussion, see George A. Locke, Change in Circumstances Justifying Modification of Child Custody Order, 6 POF 2d 499 (1975 and Supp.2001).

[¶ 13] However, a material change of circumstance does not automatically equate with a change in custody. Custody must be arranged so as to be in the best interests of the children) on an individualized basis. Given all that has occurred since the divorce, the district court needs to reassess the wisdom of the divided custody arrangement in light of the material changes in circumstances that have occurred. Although the parties agreed to that arrangement, they did so under circumstances that no longer exist. Moreover, the record does not reflect that the district court assessed the advisability of the arrangement at the outset. We agree that the district court should not have to “micro-manage” the custody arrangement. The district court adopted a “PARENTAL COOPERATION” standard in the initial decree and, in light of the rather serious problems faced by this family, some additional management, as suggested by the GAL, may well be in order. It is evident from the record that the juvenile proceedings in Sheridan County had not yet ended when the district court entered the order now before us. One gap in that process appeared to be an assessment of Mother’s home. It is evident that the children have expressed a preference as to where they want to live, and the district court should take that into consideration as well. It also appears that by now the juvenile matter in Sheridan may have developed additional information that is pertinent to the most desirable custody arrangement for the children and it is important for the district court to have all that information available to it.

CONCLUSION

[¶ 14] We reverse the order of the district court because we conclude it erred in finding that no material change in circumstances had been demonstrated. The matter is remanded to the district court for further proceedings consistent with this opinion.

      . The district court later allowed Father to amend his petition.

      . Wyo. Stat. Ann. § 20-2-201(a) provides:
      (a) In granting a divorce, separation or annulment of a marriage or upon the establishment of paternity pursuant to W.S. 14-4-401 through 14-2-907, the court may make by decree or order any disposition of the children that appears most expedient and in the best interests of the children. 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 relationship 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 maintain and strengthen a relationship with each other;
      (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 provide 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 neces-saiy and relevant.

      . The GAL is not a participant in this appeal-.