Dorr v. Newman

• Decision Date: 26 January 1990
• Docket Number: No. 89-74,89-74
• Parties: Mark DORR, Appellant (Plaintiff), v. Peggy J. NEWMAN, formerly Peggy J. Dorr, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1172

785 P.2d 1172

Mark DORR, Appellant (Plaintiff), v. Peggy J. NEWMAN, formerly Peggy J. Dorr, Appellee (Defendant).

No. 89-74.

Supreme Court of Wyoming.

Jan. 26, 1990.

John M. Daly of Daly, Anderson & Taylor, P.C., Gillette, for appellant.

William D. Omohundro and Randall T. Cox of Omohundro & Palmerlee, Buffalo, for appellee.

Before CARDINE, C.J., THOMAS, URBIGKIT and GOLDEN, JJ., and ROONEY, J., Retired.

URBIGKIT, Justice.

Appellant Mark Dorr (Dorr) appeals from an amended order increasing alimony payments to his former wife, Appellee Peggy J. Newman (Newman). We affirm the decision of the district court except to require deletion of that portion of the final order which alters the tax consequences of the increased alimony award.

Dorr questions whether:

I. * * * the court erred in ordering additional alimony when additional alimony was not pled by defendant.

II. * * * there has been a sufficient change of circumstances to justify a modification of the decree.

III. * * * the evidence supports an increase in alimony.

IV. * * * the evidence supports the court's finding of fraudulent conveyances by appellant.

Newman, formerly Peggy J. Dorr, rephrases whether:

I. * * * there has been a sufficient change of circumstances to justify the modification of the divorce decree.

II. * * *, under the appropriate standard of appellate review, the record contains sufficient evidence to support the increase in alimony as ordered by the District Court.

III. * * * the District Court committed any error by increasing alimony in response to the appellee's petition.

Dorr generally addresses appropriateness of the relief granted by the district court in answering the Newman contempt petition. To answer that attack, we evaluate if alimony can be modified following entry of a divorce decree; if that modification was properly requested; if that modification was justified by a change of circumstances; if that modification was permitted within the sound discretion of the trial court; and finally, sufficiency of the evidence. This evaluation is hindered to some degree because of a wide difference in opinion between the litigants about the "facts" of this case. ¹ Essentially, this case involves an ex-husband unwilling to make good on previously agreed to property settlement payments which resulted in the district court fashioning a remedy by adjusting alimony payments to meet the recognized needs of the ex-wife.

This divorce has drawn on the time and resources of three district court judges and five law firms. We decline the invitations implicit in the briefs presented to this court to become super-arbitrators and reweigh the legal effect here of economic distress conceded by both litigants. The district court was presented the unenviable task of providing a fair resolution to this divorced couple after years of venomous litigation. A quick review of the litigation history to this case puts into context the issues presented to this court.

Mark Dorr and Peggy Newman married in 1976. Ashley Nichole Dorr was born to their family in 1981. ² On February 8, 1983, they were granted an uncontested divorce decree. As part of the divorce settlement, a Dorr-Newman partnership was established for:

The purpose of the partnership shall be to engage in the business of owning, operating and selling property and such other businesses as may be usual or incident thereto, or such further businesses as the partners may agree upon from time to time.

Cf. Overcast v. Overcast, 780 P.2d 1371 (Wyo.1989). When boom times in Gillette vanished so did any civility to this tenuous co-existence. Dorr remarried and then the litigants really began to fight.

In May 1984, Dorr filed a motion to modify the divorce decree and to clear up the terms of the child visitation agreement. That motion resulted in a order of July 19, 1984, clarifying custody and visitation. In June, Newman, residing with young Ashley in Colorado, petitioned the county court in Denver, Colorado for a change of name for their daughter. Not informed in advance of his daughter's name change from Ashley Nichole Dorr to Ashley Nichole Newman-Dorr, Dorr filed a motion for an order to show cause. This issue was terminated by stipulation in late 1984 after an active course of pleadings.

A lull in their litigation battles lasted until September 4, 1986, when Dorr filed a motion for supplemental property settlement and more defined child visitation. This new litigation resulted in a new judge being assigned to the case; and it is from his decisions that this appeal is taken. Newman responded with a petition for contempt in March 1987 as then "resolved" by order of May 14, 1987 by denial of the Dorr petition to modify with prejudice and in decision on the Newman petition and contempt proceedings involving property and support:

IT IS THEREFORE ORDERED that the Plaintiff's Motion for Supplemental Property Settlement, which this Court has considered as a petition for modification of decree, be, and the same hereby is, dismissed with prejudice.

The Defendant then presented her testimony and evidence regarding the Petition for Contempt as filed herein. The Court having considered said evidence, statement of counsel, and being otherwise fully advised in the premises, finds as follows:

1. That on February 8, 1983, this Court entered its Order incorporating into a Decree of Divorce a Property Settlement Agreement which the parties had previously negotiated and agreed upon.

2. That subsequent to the entry of the divorce, the parties entered into an agreement on October 21, 1985, introduced in this matter as a joint exhibit, which agreement provided for the quantification of certain sums as owed by the Plaintiff to the Defendant under the paragraph entitled "Office Building" of the previous Property Settlement Agreement, said sums being in the amount of $8,000 plus attorneys fees and costs in the amount of $1,500, which was due February 8, 1987.

3. In addition, pursuant to the original Property Settlement Agreement incorporated into the Decree of Divorce in this matter, the Plaintiff agreed to pay and was ordered to pay to the Defendant $17,500 plus interest at 8% from February 8, 1983, which sum was due and payable on February 8, 1987.

4. The Plaintiff has not paid the Defendant any of said sums pursuant to the previous Orders of this Court or the parties' agreement of October 21, 1985, and by reason thereof, is in contempt of the Orders of this Court.

5. By reason of the Plaintiff's contempt of the Orders of this Court, the Defendant has incurred attorneys fees in the amount of $1,659.25 which are reasonable and necessary, together with travel expenses and lost wages in the amount of $717.65, all as the result of the Plaintiff's actions.

* * * * * *

THEREFORE, THIS COURT DOES HEREBY ORDER, ADJUDGE AND DECREE THE FOLLOWING:

1. The Plaintiff, Mark J. Dorr, is in contempt of the previous Orders of this Court for failure to pay the Defendant the sums as owed to the Defendant, said sums being $9,500, due February 8, 1987, and the sum of $17,500 plus interest at 8% from February 8, 1983 to date of payment, none of which the Plaintiff has paid to the Defendant to date.

2. The Plaintiff may purge himself of said contempt by paying to the Defendant the sum of $9,500 within 30 days of April 15, 1987.

3. The Plaintiff shall be allowed an extension of one year or until February 8, 1988, to pay to the Defendant the sum of $17,500, together with interest at 8% from February 8, 1983, to February 8, 1987, and interest at 10% from February 8, 1987 to date of payment.

4. The Plaintiff shall immediately transfer and assign unto the Defendant all stocks and bonds to which the Defendant is entitled pursuant to the original Decree of Divorce, including without limitation, the Kee Exploration stock. Such stock shall be assigned into the name of the Defendant and into the Defendant alone.

5. If the Plaintiff shall pay to the Defendant the sum of $9,500 within 30 days as provided above, the Defendant shall bear her own attorneys fees of $1,659.25 and expenses of $717.65, provided, however, that should the Plaintiff fail to pay said sum within said 30 days, then the Plaintiff shall, together with said $9,500, pay to the Defendant said attorneys fees in the amount of $1,659.25 and expenses in the amount of $717.65.

6. The Defendant shall convey her interest in the parties' former residence to the Plaintiff, provided that the Plaintiff shall, simultaneously, grant and convey a mortgage upon said residence in favor of the Defendant and in addition secure from the Plaintiff's present wife a release of her homestead interest and such other interest as said wife may have that would be superior to or interfere with the mortgage interest of the Defendant as contemplated in the original Decree of Divorce.

That judicial resolution failed and Newman, having received none of the lump sum payment, by June 1987 filed a second petition for contempt. A further hearing was held without filed order in July and again without success in payment, a third application was made about a year later on July 15, 1988 by which she petitioned

this Court enter its order holding Mark Dorr in contempt for his failure to comply to with the orders of this Court, that Mark Dorr be ordered to pay Peggy Newman the sum of $500/month as maintenance and support until such time as he has paid in full all amounts owed by him as provided in this Court[ ]'s order of May 13, 1987, that he pay to Peggy Newman all attorneys fees which she has incurred in bringing this matter to the Court by this petition, and for such other and further relief as the Court may deem [j]ust and proper.[ ³ Initially, at the time of the divorce, Dorr and Newman expected to remain in a business partnership after their divorce. The effort failed to be followed by an amended arrangement mutually adopted in 1985 to liquidate their partnership and provide for...