Cubin v. Cubin

Decision Date14 August 1984
Docket NumberNo. 83-209,83-209
Citation685 P.2d 680
PartiesFrederick W. CUBIN, Appellant (Defendant), v. R. Rochelle CUBIN, Appellee (Plaintiff).
CourtWyoming Supreme Court

Ronald A. Kastanek, Casper, for appellant.

No appearance for appellee.

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

THOMAS, Justice.

The issue which the court is called to resolve in this case is whether a divorced father who is seeking modification of child support should be permitted to make discovery according to the Wyoming Rules of Civil Procedure of his former wife's income and financial circumstances. The district court, by order, effectively insulated the former wife from discovery either by means of written interrogatories or by the taking of her deposition. We conclude that the effect of the order by the district court was to foreclose the father from an opportunity to make meaningful pretrial discovery of relevant evidence. We reverse the order of the district court and remand for further proceedings in accordance with this opinion.

The parties were divorced on March 26, 1975. Custody of their two children was awarded to the mother subject to reasonable rights of visitation by the father. The father was required to pay child support in the amount of $300 per month for each child for a period of five years, and after that he was to pay $400 per month for each child until that child reached the age of 21 or was married. This obligation was imposed pursuant to a stipulation of the parties.

On September 23, 1982, the father filed a Petition for Modification, pursuant to which he sought to modify the child support provisions contained in the original Judgment and Decree. The father alleged that his financial circumstances and ability to earn had substantially and materially changed subsequent to the date of the divorce. In particular he averred that he had remarried and had become responsible for the support of his wife and two minor children; that the increase in cost of living had outstripped his earning capacity, and this coupled with the additional expense engendered by his remarriage and the failure of his financial condition to improve as anticipated, had placed a heavy financial burden on him; and that he had sustained a material and significant downward change in financial condition, warranting a reduction in the amount of child support he should be required to pay. The father requested that the court:

"1. Revise and alter the previous award of child support to a reduced figure that is appropriate given Plaintiff's and Defendant's financial circumstances."

On October 20, 1982, the father's First Combined Interrogatories and Request for Production of Documents by Defendant Frederick W. Cubin was served by mail upon the wife's attorney. From our examination of these interrogatories we conclude that the primary purpose was to discover evidence regarding changes in the financial circumstances of the wife and the needs of the children subsequent to the date of the divorce. However, on November 10, 1982, the wife filed her Objection of Plaintiff to First Combined Interrogatories and Request for Production of Documents by Defendant Frederick W. Cubin, in which she asserted that the information requested would not lead to any meaningful discovery in connection with the litigation between the parties, and that requiring her to furnish the documents requested would be unduly burdensome and oppressive. 1

In the meantime the father served a Notice to Take Deposition upon the wife, noticing the taking of her deposition for December 3, 1982, in Denver, Colorado, where she resided. The wife responded with a Motion for Protective Order pursuant to Rule 26(c), W.R.C.P., 2 which was filed in the district court on November 23, 1982. The wife asserted in her motion that the scheduling of the deposition subjected her to an undue burden and expense and was oppressive, and that the taking of her deposition and production of documents requested in the notice would not lead to any meaningful discovery in the litigation between the parties. The hearing on this motion also was set for November 30, 1982, at which time it was combined with the hearing on her objection to the interrogatories. The hearing was held, but it was not recorded, and the record discloses nothing with respect to what occurred.

On December 23, 1982, the court entered its Order which provided that the wife was not required to respond to the interrogatories and request for production of documents filed by the father, and that she was not required to respond to the notice for the taking of her deposition. The order is silent with regard to the district court's rationale in its issuance. Under the circumstances, however, it is a fair inference that the ground for denying discovery was based upon the contentions of the wife in her objections and motion for a protective order.

Although the father sought to prosecute an immediate appeal from this order, his appeal was dismissed because interlocutory orders denying discovery are not final orders appealable under Rule 1.05, W.R.A.P. After remand of the case to the district court the hearing on the father's petition for modification was held on August 1, 1983. A Judgment and Decree denying the father's petition for modification for the reason that "the defendant has failed to prove a substantial change in circumstances from the date of the Decree to the present time" was entered on September 1, 1983. This appeal has been perfected from that Judgment and Decree.

The statement of the issues found in the father's brief on appeal is as follows:

"A.

"DID THE TRIAL COURT ERR IN ORDERING THAT PLAINTIFF WAS NOT REQUIRED TO RESPOND TO THE INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS BY THE DEFENDANT?

"B.

"DID THE TRIAL COURT ERR IN ORDERING THAT PLAINTIFF WAS NOT REQUIRED TO RESPOND TO THE NOTICE FOR THE TAKING OF HER DEPOSITION?

"C.

"DID THE TRIAL COURT ERR IN ORDERING THAT DEFENDANT DID NOT PRESENT EVIDENCE TO THE COURT WITH RESPECT TO A CHANGE IN HIS FINANCIAL AND MEDICAL CIRCUMSTANCES SUFFICIENT TO WARRANT A MODIFICATION OF THE DECREE OF DIVORCE BETWEEN THE PARTIES BY REDUCING THE AMOUNT OF CHILD SUPPORT WHICH DEFENDANT IS CURRENTLY REQUIRED TO PAY?"

The father did not present any cogent argument or authority with respect to the third issue in his brief or at oral argument. In accordance with our usual rule we will not discuss the issue of the sufficiency of the evidence to justify a modification, instead treating that issue as waived. We have no brief or argument from the mother, who did not appear in this appeal.

In a proceeding instituted for modification of child support provisions encompassed in a divorce decree the burden is upon the moving party to establish a substantial change in circumstances occurring subsequent to the entry of the original decree. Harrington v. Harrington, Wyo., 660 P.2d 356 (1983); Mentock v. Mentock, Wyo., 638 P.2d 156 (1981); Booker v. Booker, Wyo., 626 P.2d 561 (1981); and Rubeling v. Rubeling, Wyo., 406 P.2d 283 (1965). Divorce decrees, like other judgments, are res judicata with respect to issues which were decided upon the evidence presented by the parties at the time of the original proceedings. Ayling v. Ayling, Wyo., 661 P.2d 1054 (1983); Salmeri v. Salmeri, Wyo., 554 P.2d 1244 (1976); and Heyl v. Heyl, Wyo., 518 P.2d 28 (1974). If the moving party is to prevail upon a petition for modification it is necessary that an opportunity be afforded to demonstrate how the circumstances of the parties have changed subsequent to the entry of the original decree.

The courts in other jurisdictions have held that evidence of the financial circumstances of the parents is subject to discovery upon a petition to modify the support provisions established by a decree of divorce. State ex rel. Hoffman v. Campbell, Mo.App., 428 S.W.2d 904 (1968); Hughes v. Hughes, Mont., 666 P.2d 739 (1983); and Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980). The cases which are collected in Annotation 89 A.L.R.2d 7 (1963) lead to a conclusion that a substantial change in the financial condition and needs of either parent or the children may be sufficient grounds for modification of the provisions of a decree for child support payments. It is by virtue of evidence of such changes in financial condition or needs that the moving party meets the burden of proof which must be assumed. In this case the father was prevented from bringing evidence of a substantial change in conditions with regard to his ex-wife's financial status despite the rule that such a change could justify a modification in the provisions for child support. The ruling of the district court with respect to the discovery efforts inhibited the father from developing any evidence regarding the financial circumstances of the ex-wife.

In Wyoming the pertinent statutory provisions provide as follows:

Section 20-2-113(a), W.S.1977:

"In granting a divorce or annulment of a marriage, the court may make such disposition of the children as appears most expedient and beneficial for the well-being of the children. The court shall consider the relative competency of both parents and no award of custody shall be made solely on the basis of gender of the parent. On the petition of either of the parents, the court may revise the decree concerning the care, custody and maintenance of the children as the circumstances of the parents and the benefit of the children requires." (Emphasis added.)

Section 20-2-116, W.S.1977:

"After a decree for alimony or other allowance for a party or children and after a decree for the appointment of trustees to receive and hold any property for the use of a party or children, the court may from time to time, on the petition of either of the parties, revise and alter the decree respecting the amount of the...

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