Barron v. Barron, 91-240

• Decision Date: 20 July 1992
• Docket Number: No. 91-240,91-240
• Citation: 834 P.2d 685
• Parties: Stephen Lee BARRON, Appellant (Defendant), v. Karen Elizabeth BARRON, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 685

834 P.2d 685

Stephen Lee BARRON, Appellant (Defendant), v. Karen Elizabeth BARRON, Appellee (Plaintiff).

No. 91-240.

Supreme Court of Wyoming.

July 20, 1992.

Stephen Lee Barron, pro se.

James A. Hardee, Douglas, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

CARDINE, Justice.

Appellant challenges the trial court's refusal to grant his W.R.C.P. 60(b) motion for relief from a judgment modifying his divorce decree. We reverse the trial court's decision to deny relief and vacate the order modifying the divorce decree.

Appellant states the issue to be resolved as:

Whether the court below abused its discretion by not granting the appellant's motion for relief from judgment?

Appellee Karen Elizabeth Barron (wife) filed a complaint for divorce from appellant Stephen Lee Barron (husband) on February 16, 1990. Husband defaulted, and an absolute decree of divorce was entered in favor of wife on August 9, 1990. Pursuant to the decree, wife was granted custody of the couple's two minor children, and husband was ordered to pay child support in the amount of $300.00 per child per month, commencing August 10, 1990. Husband was granted reasonable rights of visitation.

On August 29, 1990, wife filed a motion to alter the August 9, 1990 decree of divorce with respect to the visitation rights of husband. Wife alleged that husband had threatened to kill her and had assaulted her, putting the lives, health and welfare of the couple's children in jeopardy. Wife therefore sought to have the decree of divorce modified to eliminate husband's visitation rights. No other modifications were sought respecting child support or any other provisions of the original decree. The district court granted wife's motion to modify the decree the same day it was filed. Husband was never served with the motion to modify the decree.

On October 10, 1990, husband was served with notice that the decree had been modified. On November 2, 1990, wife filed a motion to enter judgment pursuant to W.S. 20-2-113 (1989). By this time, husband was delinquent in making child support payments in the sum of $1600. A judgment was entered that same day for $1600 plus $250 to cover costs and reasonable attorney fees. An execution was authorized. Notice of a sheriff's sale was published, and the sale was held on November 28, 1990, at which certain items of husband's personal property were sold. The funds generated were released to wife in partial satisfaction of the judgment entered November 2, 1990.

Husband filed a timely motion for relief from judgment pursuant to W.R.C.P. 60 on July 26, 1991. In that motion, husband complained of a lack of notice and opportunity to be heard respecting wife's August 29, 1990 motion to alter judgment under W.R.C.P. 59. Husband stated:

The ex parte motion and modification has [sic] caused the Defendant [husband] irreparable harm in that all of his possessions which were awarded as a result of the Decree of Divorce were sold, with the Plaintiff [wife] being given the money from said sale. In addition to the financial loss, the Defendant [husband] has lost all rights of visitation with his children.

Husband then requested that the modification of the decree entered on August 29, 1990, be vacated and the original decree of divorce be reinstated. The district court took no action on husband's motion for sixty days, and it was therefore deemed denied according to Uniform Rule for the District Courts 301. Husband appealed the denial of his motion to this court.

Husband, in his brief, confuses wife's motion to enter judgment pursuant to W.S. 20-2-113 with her motion to modify the decree of divorce and refers to both of these motions as "modification motions." The only modification wife sought was with respect to husband's visitation rights. The rest of the divorce decree, including husband's obligation to pay child support, was never modified. Wife's motion to enter judgment pursuant to W.S. 20-2-113 was made to reduce husband's delinquent child support payments to a collectable amount. These delinquent payments became judgments by operation of law. See W.S. 20-2-113(a). The only effect of wife's motion was to fix the amount due. The subsequent execution on the judgment was not a result of wife's motion to alter the decree pursuant to W.R.C.P. 59. Husband's motion for relief from judgment asked the district court to vacate the order granting wife's motion under W.R.C.P. 59 and reinstate the original decree of divorce. Had the district court granted husband's motion for relief and reinstated the original decree, it would have had no effect on wife's motion to enter judgment pursuant to W.S. 20-2-113 or the judgment subsequently entered. Since the trial court refused to grant husband's motion for relief from the judgment, we consider on appeal only the motion husband actually made. He did not move for relief from the district court's "Judgment Pursuant to Wyo.Stat. 20-2-113" and, therefore, that issue is not before this court.

We consider only husband's W.R.C.P. 60(b) motion for relief from the judgment entered after wife's motion to alter judgment pursuant to W.R.C.P. 59. The issue on appeal from a denial of relief under Rule 60(b) is limited. We ask only whether the trial court abused its discretion. Unless the trial court was clearly wrong, its denial of relief under Rule 60(b) will not be disturbed. Gifford v. Casper Neon Sign Co., Inc., 639 P.2d 1385, 1386 (Wyo.1982).

Wife concedes that husband did not receive notice of her motion to amend the judgment. Wife styled her motion as a "Motion to Alter Judgment Pursuant to Rule 59, W.R.C.P." Rule 59(e) reads in pertinent part, "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." (emphasis added) Clearly, wife's motion did not comply with the service requirement of W.R.C.P. 59(e). Wife then argues that the issue becomes one of the district court's power to modify the decree on its own motion. Wife argues that the district court retained the authority to modify the divorce decree on its own motion until such time as the appeal period expired.

This reasoning is flawed in two respects. First, the court did not modify the decree on its own motion. Wife moved to alter the judgment, and the trial court's modification order refers to the matter as being before the court on petition of wife. Secondly, the appeal period had expired prior to the filing of wife's motion to amend the judgment. In her brief, wife asserts that the motion to alter or amend was "clearly before the Court on August 17, 1990, prior to the expiration of the appeal period." This statement is simply not supported by the record. While the motion itself reads "respectfully submitted this 17th day of August, 1990," it was not filed for record until August 29, 1990. Since the divorce decree which wife sought to modify was entered August 9, 1990, both the fifteen-day appeal period under W.R.A.P. 2.01 and the ten-day period under W.R.C.P. 59(e) had expired.

Wyoming Rule of Civil Procedure 6 provides for the computation of time periods prescribed by the Wyoming Rules of Civil Procedure, and W.R.A.P. 14.02 provides for the computation of time periods prescribed by the Wyoming Rules of Appellate...