Connors v. Connors

• Decision Date: 07 February 1989
• Docket Number: No. 87-287,87-287
• Citation: 769 P.2d 336
• Parties: Dan CONNORS, Appellant (Plaintiff), v. Charlene R. CONNORS, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 336

769 P.2d 336

Dan CONNORS, Appellant (Plaintiff), v. Charlene R. CONNORS, Appellee (Defendant).

No. 87-287.

Supreme Court of Wyoming.

Feb. 7, 1989.

John C. Hoard, Casper, for appellant.

John R. Vincent and Kristin H. James of Hettinger, Leedy & Vincent, Riverton, for appellee.

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

URBIGKIT, Justice.

This appeal offers the ex-husband's complaint about an unfavorable divorce decree and an order of contempt as including a post-decree increase in unpaid child support raising issues of notice after his failure to comply with the divorce decree and appear for scheduled hearings.

Husband Dan Connors (appellant) appeals from the Judgment and Divorce Decree, Order After Hearing, and Order of Contempt entered by the District Court of the Ninth Judicial District, Fremont County, Wyoming. The Judgment and Divorce Decree, among other things, divided the marital property, provided for support of the minor children and granted visitation. The Order After Hearing increased the child support obligation of appellant from $500 per month to $1,000 per month. The Order of Contempt contained various allegations of contemptuous behavior on the part of appellant, particularly in his failure to fulfill numerous provisions of the Judgment and Divorce Decree and in attempting to defraud appellee and the United States government. The district court ordered that appellant be denied the right to visitation with the children of the marriage until he complied with the provisions of the Judgment and Divorce Decree and directed issuance of a bench warrant for his arrest and incarceration in the county jail without bond for sixty days. Appellant appeals from the Judgment and Divorce Decree and both post-judgment orders. We will affirm the district court generally, except as to the increase in child support.

I. ISSUES

Appellant presents a myriad of issues on appeal. The only good thing about this case in present observation is that so much happened before it reached this stage of first appeal. ¹ We have consolidated appellant's issues for clarity to consider whether the district court abused its discretion when it:

1. Issued its Judgment and Divorce Decree imposing certain obligations on appellant and made various distributions of the marital property;

2. Found appellant in contempt for failing to comply with those obligations of the Judgment and Divorce Decree or to appear at the subsequent contempt hearing to which he was noticed; and

3. Increased appellant's child support obligation twofold absent the required petition by one of the parties requesting the increase.

II. FACTS

Appellant and Charlene R. Connors (appellee) were married on February 4, 1977 and have two children. After nine years of marriage, appellant filed for divorce in Fremont County, Wyoming. On filing date, by appellant's request, District Court Judge Elizabeth A. Kail ² entered a temporary restraining order enjoining each party from disposing of property owned either jointly or separately; from molesting, harassing, or interfering with the other party or the two children of the marriage; and from removing the children from the jurisdiction of the court without written consent of the other party. On May 9, 1986, appellee filed an answer and counterclaimed for temporary custody of the children during the pendency of the action to succeed by a grant of temporary custody with appellant to have rights of visitation.

Appellant, on October 21, 1986, filed a Petition for Citation of Contempt and Order to Show Cause contending that appellee had refused to allow appellant's requested visitation by removal of the children to Nebraska, in violation of both the temporary restraining order and the order regarding temporary custody. A two-day hearing was held on the issue of custody on November 19, 1986 before the newly assigned judge and different counsel for appellee after prior counsel had suffered a heart attack. At the trial, no evidence was presented as to appellant's financial ability to care for the children, nor as to his plans with respect to their future. In contrast, extensive evidence was presented as to appellee's financial situation, employment history, and future plans regarding the children. The district court filed a decision letter on December 2, 1986 with accompanying visitation guidelines. Based on the totality of the circumstances, the district court awarded permanent custody of the children to appellee with reasonable visitation to appellant, and admonished appellee against interference with appellant's visitation with their children. The letter further directed the parties to resolve, in some manner, the matters pertaining to division of the marital property and concluded:

The Court specifically finds that both parents are fit and proper to have custody of the children.

The Court requests counsel to prepare a form of decree concerning visitation and, of course, their stipulation with reference to property division. This entire case should be wrapped in one judgment, not three or four.

After several unsuccessful attempts by the parties to amicably resolve their property settlement dispute, ³ a continued trial was held on April 21, 1987. In the meantime, appellant had filed a voluntary petition for bankruptcy on March 24, 1987, and suggested to the district court on April 3, 1987 that it no longer had jurisdiction over the disputed property by virtue of an Automatic Stay Order issued by the United States Bankruptcy Court for the District of Wyoming pursuant to 11 U.S.C. § 362(a) of the Bankruptcy Code. On April 20, 1987, appellee applied for and received an order modifying the stay from the United States Bankruptcy Court for the District of Wyoming, which order concluded that the bankruptcy court had taken the case subject to the pending divorce action and that the district court would have the jurisdiction to divide the marital property so that only the property awarded to appellant through the divorce proceedings would remain part of his bankruptcy estate. ⁴

At the April 21, 1987 trial, evidence was elicited concerning various nondisclosures and misdisclosures of assets and other property by appellant, from which the district court found

that the plaintiff, Mr. Daniel Connors, has given radically conflicting statements under oath, concerning his financial affairs and abilities to this Court, and to the United States Bankruptcy Court for the District of Wyoming, and to the Internal Revenue Service on his income tax returns for the years 1983 through 1986, and in his bankruptcy petition. For example, the defendant [sic] reports to the First Interstate Bank of Riverton, N.A., that his yearly earnings for wages, tips and commissions were approximately $50,000.00. At the same time, on his United States Income Tax Return, he shows that he, in effect, lost about $5,000 per year for those very same years[.]

Evidence was also developed regarding various transfers of real property by appellant to his relatives.

The district court found appellee's original property settlement agreement to be reasonable and adopted it for the decree with the provision that various items of real and personal property "in his [appellant's] possession" be delivered to appellee. The district court further found that appellant "has willfully and without cause failed to pay child support since August 1985; that beginning in January 1986, it became very clear that the plaintiff intended to divorce the defendant and that he took steps to defraud and deceive her concerning his intentions and to liquidate property in contemplation thereof * * *." In decision, the appellant was ordered to pay the sum of $600 per month back child support within two months of the date of judgment and $500 per month thereafter until the children either died or reached age twenty-one, and additionally to pay appellee's attorney's fees and costs totaling $9,688.73. Regarding the property transferred to appellant's relatives (transferees), the district court ordered that certain portions of it be either set aside to appellee as her sole and separate property or be held and reserved for the support of the children placing a lien thereon to insure the payment of current and back child support. Finally, the district court ordered that appellant "personally indemnify and hold [appellee] harmless of and from any debt or obligation owing to the First Interstate Bank of Riverton, N.A., or National First Mortgage Corporation of California; that this order is personal in nature and shall survive, notwithstanding the planned discharge of those debts by the United States Bankruptcy Court."

On May 18, 1987, the transferees (as non-parties to the divorce proceeding) filed a Motion for Stay of Execution, a Combined Motion for New Trial and Motion for Relief from judgment Under Rules 59 and 60(b) W.R.C.P., and a Notice of Appeal arguing that the district court did not have jurisdiction over the transferees due to improper service or over the property itself because it was transferred before the date of the restraining order in the underlying divorce action. The following day, appellant also appealed. On June 4, 1987, appellee filed a traverse to the transferees' motions for new trial and relief from judgment. Finally, on June 8, 1987, appellee filed a Motion for Order of Contempt against appellant for his failure to comply with the district court's order regarding child support and the transfer of real and personal property.

Hearing was scheduled for the various motions on September 25, 1987. ⁵ On November 13, 1987, the district court entered an Order After Hearing amending the Judgment and Divorce Decree to reflect its finding that the district court had no jurisdiction over the transferees or the property, as the parties had not been served. Also found was that the property had been transferred before the date of the...