Dellit v. Tracy
| Decision Date | 04 December 2015 |
| Docket Number | No. S–15–0085.,S–15–0085. |
| Citation | 362 P.3d 353 |
| Parties | Stacy R. DELLIT, Appellant (Respondent), v. Joshua M. TRACY, Appellee (Petitioner). |
| Court | Wyoming Supreme Court |
Representing Appellant: Greg L. Goddard of Goddard and Vogel, P.C., Buffalo, Wyoming.
Representing Appellee: Kevin K. Kessner of Yonkee & Toner, LLP, Sheridan, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶ 1] Mother, Stacy Dellit, appeals a district court order modifying the child support obligations of Father, Joshua Tracy. She contends that the district court abused its discretion by ordering Father to pay less than the statutory presumptive amount. We affirm.
[¶ 2] Did the district court abuse its discretion when it deviated downward from Father's presumptive child support obligation?
[¶ 3] The parties, who never married, are the parents of two minor children born in 2006 and 2008. Father and Mother remained together for a period of time after both children were born, but eventually separated in 2009. As a result, Father filed a petition to establish custody and visitation. The parties came to an agreement and filed a stipulated order establishing custody and visitation, which was entered by the district court later that year. The stipulated order provided that they had joint legal custody and shared physical custody.
[¶ 4] Father and Mother briefly reconciled in 2010, which resulted in the district court entering a stipulated order to suspend child support. Unfortunately, their efforts at reconciliation were unsuccessful, and the relationship came to an end. In 2012, the district court entered a stipulated order for modification of child support which required Father to pay child support of $182.00 per month, half of the children's day care costs and half of their school expenses. The child support amount was based on the parties' agreement that they were exercising shared custody. In 2013, the district court also entered an additional stipulated order regarding health insurance. This order required Mother to be the insuring parent and for her to obtain employment-related insurance for the children. It also required that any medical costs not covered by insurance be split equally between the parties.
[¶ 5] In 2014, Mother decided to move from Wyoming to Georgia. This led Father to file a petition to modify custody, support and visitation, in which he claimed that the move constituted a material change in circumstances warranting modification. Mother responded, inter alia, that she actually had primary physical custody of the children, and that therefore there was no material change in circumstances. She also requested that the district court order Father to pay child support in accordance with the presumptive child support guidelines which apply when one parent (her) has primary physical custody.
[¶ 6] The matter proceeded to an evidentiary hearing on the petition to modify, at which point Mother notified the court that she no longer planned to move out of state. Custody and visitation issues consequently became moot, requiring that the court decide only whether Mother was entitled to support under the guidelines applicable when one parent has primary physical custody.
[¶ 7] The district court found that the existing custody arrangement was in fact not shared as the previous stipulated orders mistakenly indicated, and that Mother did indeed have primary custody based upon the number of nights that the parties had the children overnight per year.1 The evidence established Mother had the children overnight for 232 nights of the year, which is 64% of the time, and Father had the children overnight for 133 nights of the year, or 36% of the time.
[¶ 8] Based upon the evidence concerning the parties' earnings and the fact that Mother had primary custody, the district court determined:
[¶ 9] However, the court found that a downward deviation was warranted under Wyo. Stat. Ann. § 20–2–307(b), and it reduced Father's child support obligation from the presumptive amount to $600.00 per month, setting forth its reasons for doing so. Mother timely perfected this appeal.
[¶ 10] We review a district court's determination to deviate downward from the presumptive child support amount for an abuse of discretion. Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d 836, 840 (Wyo.2015) ; Egan v. Egan, 2010 WY 164, ¶ 7, 244 P.3d 1045, 1048 (Wyo.2010).
[¶ 11] Our legislature has created a comprehensive scheme to guide courts in determining child support. See Windham, ¶ 13, 348 P.3d at 840 ; see also Opitz v. Opitz, 2007 WY 207, ¶ 8, 173 P.3d 405, 408 (Wyo.2007). Presumptive child support is established by the tables set forth in Wyo. Stat. Ann. § 20–2–304(a), and it is based upon the parents' net income.
[¶ 12] While the presumptive child support established by § 20–2–304 is rebuttably presumed to be correct, see § 20–2–307(a), a district court has discretion to deviate from the presumptive amount if the case before it justifies such a departure. Windham, ¶ 13, 348 P.3d at 840. The statute states in pertinent part:
Wyo. Stat. Ann. § 20–2–307(b) (LexisNexis 2015). This statute tells us that while the district court must give serious consideration to the child support guidelines, it can and should deviate from them when it is just and appropriate to do so. Egan, ¶ 10, 244 P.3d at 1049. "We have repeatedly stated that the district court has discretion to deviate from the presumptive amount on a case by case basis." Id. (internal quotation marks omitted). District courts must exercise their discretion to set a fair amount of child support in light of all the circumstances. Id.
[¶ 13] In this case, the district court consulted the statutory factors and expressly set out the reasons supporting a deviation, as required by the statute. After considering the evidence, it determined that:
The application of the presumptive child support would be unjust or inappropriate in this particular case due to the parties' near shared custody arrangement for the purposes of calculating child support, the number of days that the children spend with the Father, and the Father's contribution to the children's uncovered medical expenses, day care costs, and their daily activities.
[¶ 14] Mother contends the district court abused its discretion when it deviated downward from the presumptive child support amount. Her disagreement is based upon several theories, both factual and legal, concerning the factors applied by the district court pursuant to § 20–2–307(b). We will analyze the disputed factors in the order they appear in the statute.
Cost of necessary child day care § 20–2–307(b)(ii)
[¶ 15] The evidence presented at the modification hearing established that Father works on Mondays and Tuesdays when the children are with him for visitation, and that he pays for child care during that time. In 2013 he paid $1,889.00 per child, and $1,620.02 for both children in 2014, and he anticipates expending an amount similar to that of 2013 in 2015. Accordingly, the district considered this as a factor warranting deviation.
[¶ 16] Mother complains that the district court abused its discretion as to this factor because there was no evidence that Father pays for necessary day care, as § 20–2–307(b)(ii) requires. She contends that because she offered to watch the kids when Father was working, the day care costs he incurred were avoidable.
[¶ 17] While at first blush Mother's argument may seem convincing, the record confirms that the district court had a reasonable basis for concluding that these child care expenses were indeed necessary. The evidence presented at the modification hearing established that Father opted to leave the children in day care because Mother recently started a new job, and her work schedule is uncertain. As Father testified at the hearing, taking the children out of daycare would result in them losing their reserved spots, and if Mother's work schedule changed, Father would have no readily available child care option. Under the circumstances, it was reasonable for the district court to consider day care expense in determining whether to deviate from the presumptive support.
The amount of time the children spend with each parent— § 20–2–307(b)(ix)
[¶ 18] Consistent with its written order, see ¶ 13 supra, the district court explained during the modification hearing that:
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