Brush v. Davis

• Decision Date: 27 December 2013
• Docket Number: No. S–13–0081.,S–13–0081.
• Citation: 315 P.3d 648
• Parties: Kelly Suzanne BRUSH, f/k/a Kelly Suzanne Davis, Appellant (Plaintiff), v. Roger Ryan DAVIS, Appellee (Defendant).
• Court: Wyoming Supreme Court

315 P.3d 648

Kelly Suzanne BRUSH, f/k/a Kelly Suzanne Davis, Appellant (Plaintiff),

v.Roger Ryan DAVIS, Appellee (Defendant).

No. S–13–0081.

Supreme Court of Wyoming.

Dec. 27, 2013.

Representing Appellant: John D. Chambers, Casper, Wyoming.

Representing Appellee: Roger Ryan Davis, pro se.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

KITE, Chief Justice.

[¶ 1] The district court modified custody and support for the parties' minor child. Appellant Kelly Suzanne Brush f/k/a Kelly Suzanne Davis (Mother) appeals, claiming the district court did not have jurisdiction to grant a change of custody or support, she was denied due process of law when a default judgment was entered against her, and the district court abused its discretion when awarding child support.

[¶ 2] We affirm.

ISSUES

[¶ 3] Mother presents the following issues on appeal:

I. Whether the district court lacked subject matter jurisdiction to grant a default judgment due to Appellee's failure to comply with the statutory pleading requirements?

II. Whether the Appellant was denied due process when default was improperly entered against her and subsequently, improperly upheld against Appellant?

III. Whether the District Court abused its discretion in entering a child support [order] due to its failure to comply with statutory child support requirements?

Appellee Roger Ryan Davis (Father) maintains the district court had jurisdiction and correctly ruled on the child custody and support issues.

FACTS

[¶ 4] Father and Mother divorced in 2005 in Natrona County. Mother was awarded primary custody of the parties' children,¹ and Father was ordered to pay child support. On November 2, 2012, Father filed a Petition for Modification of Custody and Time–Sharing in the same court under the same docket number. Acting pro se, Father drafted his own petition and did not use the Family Law Pro Se Forms provided by the Wyoming Supreme Court. Although his petition stated that a copy of the original divorce decree was attached as an exhibit, it was not.

[¶ 5] Father filed an Affidavit of Service indicating that Mother had been served with a summons and “Petition to Modify Custody and Support” on November 3, 2012, in Casper. On November 29, 2012, Father filed an Application for Entry of Default against Mother, stating that she had been served on November 3, 2012, but had not responded within the time allowed by law. The accompanying Affidavit of Petitioner in Support of Default incorrectly stated that Mother was served on November 5, 2012. The clerk of the district court entered a default against Mother. Father presented a proposed order modifying custody and support, but the district court refused to enter it without a hearing.

[¶ 6] At the hearing on January 18, 2013, neither party was represented by counsel, so the district court explained that Father had the burden of proving a substantial change of circumstances had occurred since the last order and it was in the best interest of the child to change custody. The judge also stated:

[Mother] was properly served and has not answered. So [Father] is entitled to present any witnesses that he has, and he may testify himself. [Mother] may cross-examine any witnesses he calls, but you cannot testify yourself or present any witnesses because you are in default for not having filed an answer.

The hearing proceeded under those parameters and Mother cross examined the witnesses, including Father, and presented a closing statement arguing that it was in the child's best interest to remain in her custody.

[¶ 7] The district court agreed there had been a substantial change of circumstances and it was in the child's best interest for Father to be awarded custody. The judge stated, however, that “[i]t's not clear to me what the parties' incomes are. So I would like both parties to submit financial affidavits within five days, and I'll determine child support.” Father filed a confidential financial affidavit, but Mother did not. The district court used an Affidavit of Indigency, which Mother had filed prior to the hearing apparently requesting appointment of counsel, to determine Mother's income. It ordered Mother to pay $340 per month, indicating that was the presumptive amount of child support determined by using the child support guidelines. Mother retained an attorney and filed a timely notice of appeal.

DISCUSSION

A. Jurisdiction

[¶ 8] Mother claims the district court did not have subject matter jurisdiction over Father's petition. Subject matter jurisdiction is an issue of law that may be raised at any time by any party or the court on its own motion. JA v. State, Dept of Family Servs. (In re DSB), 2008 WY 15, ¶ 9, 176 P.3d 633, 636 (Wyo.2008).

[¶ 9] “In general, jurisdiction is ‘the power to hear and determine the matter in controversy between the parties.’ ” Id., ¶ 10, 176 P.3d at 636, quoting McGuire v. McGuire, 608 P.2d 1278, 1290 (Wyo.1980). A court has subject matter jurisdiction when it has the authority to consider and decide “cases of the general class of which the proceeding belongs.” DF v. MLM (In re MKM), 792 P.2d 1369, 1373 (Wyo.1990). “Subject matter jurisdiction either exists or it does not, and ‘before proceeding to a disposition on the merits, a court should be satisfied it does have the requisite jurisdiction.’ ” JA, ¶ 10, 176 P.3d at 636, quoting DF, 792 P.2d at 1373.

[¶ 10] Mother claims that jurisdiction was lacking because Father did not attach a copy of the original divorce decree to his petition for modification of custody as required by Wyo. Stat. Ann. § 20–2–203(c) (LexisNexis 2013):

(c) Any party seeking to enforce or modify a custody order pursuant to this section shall attach a certified copy of the custody order to the petition to be enforced or modified. A certified copy of an order entered by a Wyoming court providing for the care, custody or visitation of children may be filed in the office of the clerk of the district court of any county in this state in which either parent resides if neither parent resides in the county of original jurisdiction.

[¶ 11] A court that enters a custody order has “continuing subject matter jurisdiction to enforce or modify the decree concerning the care, custody and visitation of the children as the circumstances of the parents and needs of the child require, subject to the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act.” Wyo. Stat. Ann. § 20–2–203(a). Father's modification petition was filed in the same district court that granted the original divorce decree in which Mother was awarded primary physical custody of the child. Under § 20–2–203(a), the district court had continuing jurisdiction to enforce and modify the custody provisions of the decree.

[¶ 12] As Mother points out, § 20–2–203(c) requires a petitioner to attach a certified copy of “the custody order to the petition to be enforced or modified.” Father's petition stated that a copy of the decree was attached as “Exhibit A,” but he failed to do so. Section 20–2–203(c) does not, however, indicate that such a failure undermines the district court's continuing subject matter jurisdiction over the custody and control of the children granted by § 20–2–203(a). Mother does not direct us to any case where we have ruled that the district court is deprived of jurisdiction over a custody matter simply because the petitioner neglects to attach a copy of the order.

[¶ 13] Although not directly on point, we held in Excel Constr., Inc. v. Town of Lovell, 2011 WY 166, ¶ 27, 268 P.3d 238, 243 (Wyo.2011), that the claimant's failure to attach an exhibit breaking down its governmental claim did not deprive the district court of jurisdiction because the precise amount of its damages was identified in its notice of claim. This was true even though the strict constitutional and statutory requirements for governmental claims were involved. Here, Father identified the decree he was seeking to modify by title and date in his petition which was filed in the same court and under the same docket number as the original decree. The transcript of the default hearing plainly shows that Mother was aware of the original decree and the grounds for Father's petition for modification. Father's failure to attach a copy of the referenced order clearly did not deprive the district court of jurisdiction over the modification action.

[¶ 14] Mother also claims the district court lacked subject matter jurisdiction because Father did not give notice of any other pending proceedings involving the child under the Uniform Child Custody Jurisdiction Act. Wyo. Stat. Ann. § 20–5–309 states in relevant part:

(a) Subject to a confidentiality order entered pursuant to W.S. 35–21–112 or any other court order allowing a party to maintain confidentiality of addresses or other identifying information or other law providing for the confidentiality of procedures, addresses and other identifying information, in a child custody proceeding each party in its first pleading or in an attached affidavit shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five (5) years and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit shall state whether the party:

(i) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child, and if so, the pleading or affidavit shall identify the court, the case number and the date of the child custody determination, if any;

(ii) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights and adoptions, and if so, the pleading or affidavit shall identify the court, the case number and the...