Gaines v. Doby
| Decision Date | 06 July 1990 |
| Docket Number | No. 89-282,89-282 |
| Parties | Phyllis Virginia (Doby) GAINES, Appellant (Plaintiff), v. Herbert Kenneth DOBY, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Robert B. Carroll, Cheyenne, for appellant.
Herbert K. Doby, Great Falls, Mont., pro se.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
Phyllis Virginia Gaines (mother) appeals from an order of the district court which modified child visitation provisions and a medical insurance provision in the original divorce decree which dissolved mother's marriage to her former husband, Herbert Kenneth Doby (father), who subsequently moved to Montana. In an earlier chapter in this case, without reaching the merits of the controversy, we remanded so that the district court's procedures in using a court commissioner in cases of this kind could be brought into compliance with constitutional and statutory requirements. Gaines v. Doby, 773 P.2d 442 (Wyo.1989).
The case is now back and mother's appeal presents two issues:
I. Did the trial court err in modifying the decree of divorce under the guise of clarifying visitation after finding there were no changes in circumstances which would justify a modification?
II. Did the trial court err in ignoring and refusing to enforce the medical insurance payment provisions of a property settlement agreement voluntarily entered into by the parties and approved by the court?
Father restates these two issues and adds a third:
I. Did the district court properly modify the original decree by defining and clarifying liberal visitation?
II. Did the district court properly modify the original decree by defining and clarifying the parties' obligations regarding the medical insurance coverage and costs provisions of the original decree?
III. Is it proper for this court, pursuant to Rule 10.05, W.R.A.P., to award costs and penalties to appellee because there were [sic] no reasonable cause for appeal?
We affirm.
The facts of this case, from the parties' divorce on January 20, 1987, when the original decree was entered, until our decision on May 2, 1989, remanding for further proceedings, will not be repeated here except where useful in our disposition of this appeal.
Following our remand, the district court caused the court commissioner to review the record of the August 9, 1988 hearing between the parties which had been held by the court commissioner and to make new findings. The district court independently reviewed the evidence and the court commissioner's The several provisions of the original decree with which we are concerned relate to the father's visitation with his minor daughter and mother's medical insurance coverage for herself and the parties' minor child. 2 The relevant part of the visitation provisions recited:
new findings and, ultimately, 1 entered an amended judgment and order of October 23, 1989.
10. The Defendant [father] shall be allowed liberal visitation of the minor child of this marriage as noted below:
* * * * * *
d. In the event these parties ever reside in different cities, the following shall serve as the Defendant's [father's] visitation privileges:
i. Continue alternating holidays.
ii. Eliminate visitation every other week-end.
iii. The Defendant [father] shall be entitled to one (1) month uninterrupted visitation in the summer months or at the time of his vacation from his place of employment.
iv. The Defendant [father] may be entitled to three (3) months visitation with the minor child of this marriage when and if this minor is old enough to give her approval to such a visitation.
The relevant part of the medical insurance provision recited:
13. Regarding medical and dental bills incurred by the Plaintiff [mother] and the child of this marriage, the Plaintiff [mother] currently is covered by an insurance policy at her place of employment. The minor child of this marriage is also covered under a dependent coverage provision. As long as the Plaintiff [mother] is so employed, she will continue to insure herself and the child of this marriage. In the event, however, that the Plaintiff [mother] should ever lose this insurance coverage, an independent medical and dental policy shall be acquired. Both parties shall share equally in the expense of this policy. Furthermore, the intent of this paragraph is that the Plaintiff [mother] and the Defendant [father] shall share equally in all uncovered medical and dental expenses of the Plaintiff [mother] and the minor child of this marriage.
The district court modified these provisions in its October 23, 1989 order. With respect to visitation, the court's order recites these pertinent findings:
2. The original Property Settlement and Agreement and the Divorce Decree provide that the Defendant [father] shall be allowed liberal visitation.
3. The court should define and specify liberal visitation for the best interest of the minor child and upon the request of both parties that visitation be specified.
4. The Plaintiff [mother] is resistant to the defendant [father] having visitation; such resistance not being in the best interest of the child having frequent contact with the father.
5. The court should define and specify the visitation to be had by the father under the provisions of W.S. 20-2-113, which provides that the court may revise the decree concerning visitation as the circumstances of the parents and the benefit of the child require and upon the request of both parties:
a. The parties now live a great distance apart b. The Plaintiff [mother] has taken a very hard line approach to allowing visitation in an attempt to severly [sic] limit such visitation.
c. The child should not be placed in the position of determining when she should have greater visitation, particularly in light of the inability of the parents to agree upon visitation. (emphasis added).
On those findings, the court then ordered that the visitation provisions in the original decree be modified in the following way:
1. The Defendant [father] shall have visitation in accordance with the Standard Visitation Order used by the District Court Commissioner, a copy of which is attached hereto and by this reference made a part hereof, with the following modifications:
a. The Defendant [father] shall have visitation for eight (8) continuous weeks commencing on June 15 of each year;
b. The Defendant [father] shall have the child for visitation from December 15 to January 15 for the next year;
c. After the child begins school at the elementary level, the defendant [father] shall have the child for visitation for the two (2) week Christmas and New Year's school vacation in alternating years;
d. In those years during which the defendant [father] is not entitled to visitation over the Christmas and New Year's holidays, Defendant's [father's] summer visitation shall be extended by an additional two weeks to a total of ten (10) continuous weeks;
e. To the extent not inconsistent with paragraphs a through d above, other standard visitation, in accordance with the Standard Visitation Order attached hereto and incorporated herein, including weekend-type visitations, shall apply. Twenty-four (24) hour notice shall be given;
f. The Defendant [father] shall have visitation in alternate years for the Thanksgiving and Easter holidays; and
g. The costs attributable to transporting the child for summer visitation and holiday visitations shall be born equally by the parties; all other visitation costs shall be born by the party exercising a visitation right.
2. The foregoing visitation is a minimum amount of visitation and greater visitation shall be arranged whenever possible.
With respect to medical insurance, the court's order recites these pertinent findings:
6. The Defendant [father] should not be required to pay for medical insurance for the Plaintiff [mother] as there are changed circumstances in that she has remarried.
7. The Plaintiff [mother] has, at all times relevant, had medical insurance as a benefit of employment and should continue to provide such insurance for the minor child.
On these findings, the court then ordered that the medical insurance provision in the original decree be modified in the following way:
3. The Plaintiff [mother] shall provide medical insurance for the benefit of the minor child at any time it is provided for her as an employment benefit. The Defendant [father] shall provide medical insurance for the benefit of the minor child at other times. Any costs * * * not covered by medical insurance shall be shared equally by the parties.
4. The Defendant [father] shall not be required to pay any of the Plaintiff's [mother's] personal medical expenses or insurance.
This appeal followed.
If either party to the divorce decree petitions the court to revise some aspect of the decree concerning the care, custody, visitation and maintenance of the parties' child, the court has jurisdiction to act. W.S. 20-2-113 (Cum.Supp.1989). Independent of that statutory grant of revisory power, the court possesses inherent equitable powers in such matters as well. Wardle v. Wardle, 464 P.2d 854, 856 (Wyo.1970)- ; Urbach v. Urbach, 52 Wyo. 207, 226, 73 P.2d 953, 960, 113 A.L.R. 889 (1937). The court's statutory and equitable revisory powers obtain also if either party to the decree petitions the court with respect to alimony or other allowance under W.S. 20-2-116 (June 1987 Repl.).
This court has always recognized that the trial court exercises a broad discretion in the execution of its revisory powers in matters involving domestic relations. Ayling v. Ayling, 661 P.2d 1054, 1056 (Wyo.1983); Henson v. Henson, 384 P.2d 721, 723 (Wyo.1963). ...
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