Broyles v. Broyles

• Decision Date: 17 December 1985
• Docket Number: No. 84-290,84-290
• Citation: 711 P.2d 1119
• Parties: Shannon Lou BROYLES, Appellant (Defendant), v. Daniel Robert BROYLES, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1119

711 P.2d 1119

54 USLW 2391

Shannon Lou BROYLES, Appellant (Defendant), v. Daniel Robert BROYLES, Appellee (Plaintiff).

No. 84-290.

Supreme Court of Wyoming.

Dec. 17, 1985.

James L. Edwards of Sheehan, Stevens & Sansonetti, Gillette, for appellant.

Franklin J. Smith of Pattno-Smith and Associates, Cheyenne, for appellee.

Before THOMAS, C.J., and ROSE, ^* ROONEY, ^** BROWN and CARDINE, JJ.

ROSE, Justice.

Shannon Broyles appeals from an order of the district court terminating appellee Daniel Broyles' duty to provide child support pursuant to the parties' divorce decree and finding her liable for $10,300 in damages for the failure to abide by the property settlement incorporated into the decree. The district court also found that appellee owed $10,300 for past-due child support and entered judgment for that amount in favor of appellant. The court determined that the damages award offset the judgment for child support arrearages and denied recovery to both parties.

Appellant presents the following issues for review:

"I. Did plaintiff [appellee] present sufficient evidence of his right to or the value of the property claimed to sustain an award of $10,300.00 against Appellant?

"II. Did the judge err in considering sentimental value as part of the award against Appellant?

"III. Did the trial judge err in setting off the judgment for child support against the judgment for the value of the personal property which the court deemed Appellant failed to return to the Appellee?

"IV. Did the judge err in modifying the divorce decree and property settlement agreement so as to strike all further requirements for child support and insurance coverage?

"V. Did the judge err in emancipating the child from Appellee?

"VI. Did the judge abuse his discretion in failing to award attorney's fees to Appellant?"

Appellee raises an additional issue:

"[Whether] [t]he trial Court has the power, and duty when necessary, under both its equitable powers and Wyoming Statute § 20-2-116 (1977), ¹ to refuse to assess child support arrearages * * *."

We will reverse those portions of the judgment which permit a setoff against the child support deficiency and which terminate appellee's duty to provide future child support. We will affirm the district court's finding of liability for appellant's violation of the parties' property agreement, but will remand for a hearing on the issue of damages. We will affirm the court's denial of attorney's fees. We will not address the issue raised by appellee since he has not filed a cross-appeal to this court.

FACTS

Appellant and appellee were divorced from each other in July, 1980. The divorce decree incorporated the parties' property settlement and child-custody agreement, which agreement awarded appellant custody of the parties' minor child, subject to specified visitation rights in appellee. The agreement obligated appellee to pay child support of $200 per month, with increments over a period of four years to $275 per month. Each party retained his clothing and personal effects under the property settlement.

In the months following the entry of the divorce decree, both parties filed numerous motions seeking to enforce the child support, visitation and property provisions of the decree. Despite court orders compelling compliance with the decree, the parties continued to disregard its requirements. On May 2, 1984, appellant moved the court to order appellee to show cause why he had not contributed to the support of his child since April, 1981. In his answer, appellee admitted the alleged deficiencies in child support, but raised, as an affirmative defense, the refusal of appellant to allow him to exercise his visitation rights. In addition, appellee moved the court to hold appellant in contempt for her refusal to abide by the visitation and property provisions of the divorce decree. Appellee also filed a motion to modify the decree so as to grant him custody of his daughter or, alternatively, to suspend his child-support obligation during those times that appellant refused to permit visitation.

At the hearing, appellee testified that he had not been permitted to visit his daughter for more than three years and, for that reason, he had failed to make child-support payments amounting to $10,300. The daughter, who was 17 years old at the time of the hearing, testified that she did not wish to visit her father and that she, not her mother, had made that decision.

In support of his claim that appellant had violated the property-settlement agreement, appellee submitted a list of items, including clothing, tools, a saddle, a snowmachine, a diamond ring, and savings bonds, that appellant had not released to him after the divorce. He valued the ring at $3,000, the snowmachine at $1,700, and the bonds at $175. He also testified that he had paid obligations of appellant totaling $1,009 and that she had appropriated his share, $470, of their 1979 federal income tax refund.

Following the hearing, the court ruled that it had no authority to forgive the deficiency in child support by reason of the denial of visitation rights and entered judgment against appellee for $10,300. The court determined that appellant had violated the property-settlement agreement by retaining property awarded to appellee and by failing to pay her obligations. The court noted the difficulty in assigning a value to some of the unreturned property, but concluded that appellee should have judgment in the sum of $10,300. In entering these monetary judgments, the court ruled

"[t]hat equity demands the above-mentioned off-setting judgments and neither party owes the other anything as of this date."

The court further determined that the daughter had emancipated herself from her father and that appellant had the financial resources to care for her. Accordingly, the court modified the divorce decree to terminate appellee's obligation to support his

daughter in the future. Finally, the court ruled that the parties should pay their respective attorney's fees and costs.

ISSUES PROPERLY BEFORE THIS COURT

Without taking a cross-appeal to this court, appellee raises a claim rejected by the district court: The denial of visitation rights is a valid defense to an action for child-support arrearages.

The trial court entered judgment in appellant's favor for $10,300 in past-due child support, but permitted appellee to off-set the full amount of the deficiency. Appellee urges this court to affirm the effective denial of recovery for arrearages on the ground that appellant's refusal to permit visitation with the child excused his support obligations.

The rules are well settled concerning matters which an appellee properly may raise in response to an appeal taken by the adverse party. An appellee need not cross-appeal to assert an alternative theory, offered to and rejected by the district court, which would support the district court's ultimate disposition of the case. First Wyoming Bank, N.A., Rawlins v. Trans Mountain Sales & Leasing, Inc., Wyo., 602 P.2d 1219 (1979). Conversely, to attack the effect of the judgment, an appellee must perfect a cross-appeal to this court. Wyoming State Treasurer v. City of Casper, Wyo., 551 P.2d 687 (1976). We said in Wyoming State Treasurer, 551 P.2d at 693:

"The controlling rule has been settled for many years. In United States v. American Railway Express Co., 1924, 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087, 1093, it was said:

" ' * * * [A] party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. * * * '

"In summary, a non-appealing party may not attack the ultimate effect of the judgment below but may support it by any matter appearing in the record. The rejection of a contention, argument or theory in support of a claim does not reject the final upholding of the claim itself."

In the case at bar, the trial court rejected appellee's claim that the denial of visitation excused his support obligation and that no judgment for arrearages should enter against him. Appellee now seeks to alter the effect of the judgment by asking this court to reverse the district court's ruling that appellant established her claim to $10,300 for past child support. Appellee's contention, if adopted by this court, would reduce appellant's rights under the judgment while retaining his own right to recover damages. Such an issue can be raised only by a cross-appeal. Appellee has not perfected an appeal to this court and, therefore, we will not address whether the denial of visitation privileges is a defense to an action for child-support arrearages.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE AWARD FOR VIOLATION OF THE PROPERTY AGREEMENT

Appellant contends that the evidence was insufficient to support the trial court's finding that appellee had a right to the claimed personal property or that the value of the property justified a damages award of $10,300. When the sufficiency of the evidence to support the judgment is at issue, we have a duty to examine the evidence in a light most favorable to the prevailing party and to resolve all conflicts in the testimony and exhibits in his favor. True v. Hi-Plains Elevator Machinery, Inc., Wyo., 577 P.2d 991, 996 (1978). We will not set aside the trial court's findings At the hearing in the instant case, appellee introduced into evidence a list of 28 items of property which he testified had not been released to him pursuant to the terms of the divorce decree. Appellee identified these items as his clothing or other personal effects, some of which were gifts to him or nonmarital property.

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