Gaines v. Doby, 88-283

• Decision Date: 02 May 1989
• Docket Number: No. 88-283,88-283
• Citation: 773 P.2d 442
• Parties: Phyllis Virginia (Doby) GAINES, Appellant (Plaintiff), v. Herbert Kenneth DOBY, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 442

773 P.2d 442

Phyllis Virginia (Doby) GAINES, Appellant (Plaintiff), v. Herbert Kenneth DOBY, Appellee (Defendant).

No. 88-283.

Supreme Court of Wyoming.

May 2, 1989.

Robert B. Carroll, Cheyenne, for appellant.

Herbert K. Doby, pro se.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

MACY, Justice.

Appellant Phyllis (Doby) Gaines appeals from an order of the district court which modified a divorce decree with respect to child visitation and certain aspects of child support and in which neither party was found in contempt. The modification and contempt proceedings were held before a court commissioner who took evidence, made findings, and submitted a recommended order to the district court.

We reverse.

Appellant describes the issues as follows:

I. DID THE TRIAL COURT ERR AS A MATTER OF LAW, OR ABUSE ITS DISCRETION, IN ASSIGNING POST DECREE CROSS-MOTIONS TO MODIFY THE DIVORCE DECREE AND CROSS-MOTIONS TO HOLD THE PARTIES IN CONTEMPT TO THE COURT COMMISSIONER FOR A TRIAL ON THE ISSUES?

II. DID THE TRIAL COURT ERR AS A MATTER OF LAW, OR ABUSE ITS DISCRETION, BY APPROVING THE COURT COMMISSIONER'S INJUNCTION ENJOINING THE APPELLANT FROM ALLOWING THE MINOR CHILD OR ANY OTHER PERSON TO CALL ANY PERSON, EXCEPT HER NATURAL FATHER, "DADDY", "FATHER", "PAPA", "DAD", "POP", OR ANY OTHER TERM THAT INDICATES THE PARENTAL RELATIONSHIP BETWEEN FATHER AND CHILD?

III. DID THE TRIAL COURT ERR AS A MATTER OF LAW, OR ABUSE ITS DISCRETION, BY APPROVING THE COURT COMMISSIONER'S ORDER REDEFINING VISITATION, ALLOWING APPELLEE TO VOLUNTARILY REDUCE HIS CHILD SUPPORT OBLIGATION AND REFUSING TO ENFORCE THE MEDICAL PAYMENT TERMS OF THE AGREEMENT ENTERED INTO BY THE PARTIES?

In her reply brief, appellant articulates as a narrower issue:

WAS THE DISTRICT COURT PRESENTED ADEQUATE FINDINGS OF FACT TO INDEPENDENTLY REVIEW THE PROCEEDINGS BEFORE THE COURT COMMISSIONER AND MAKE AN INDEPENDENT DECISION IN MODIFYING THE DIVORCE DECREE?

As in our recent decision in the case of Foster v. Foster, 768 P.2d 1038 (Wyo.1989), the dispositive issue here, as more precisely identified and argued by appellant in her reply brief, is whether the district court's review of the court commissioner's findings and recommendations complied with constitutional and statutory requirements.

Appellant (the wife) and appellee Herbert Doby (the husband) were divorced on January 20, 1987. The divorce decree incorporated the terms of an agreement entered into by the parties regarding property settlement and the custody and support of the minor child of the parties. On June 22, 1988, the husband filed a combined motion to find the wife in contempt and to modify the decree. In this motion the husband alleged that the wife had not allowed him liberal visitation as provided for in the decree and requested that the decree be modified to specify visitation rights and to more clearly specify a sum certain in monthly child support.

On July 6, 1988, the wife filed a response and a cross-motion to find the husband in contempt and to modify the decree. The wife alleged, as the basis for her contempt motion, that the husband had failed to disclose his true income during the negotiations leading to the settlement agreement. The wife sought increased child support in accordance with her reading of the decree, which was drafted to allow a fluctuating support obligation determined as a percentage of the husband's income, and she also requested that the medical and dental insurance coverage provision of the settlement agreement be enforced in accordance with her interpretation of that provision.

The matter was referred to the court commissioner who conducted a hearing on August 9, 1988. The court commissioner heard testimony from both parties and from their respective new spouses. At the conclusion of the testimony, the court commissioner orally announced his findings and directed counsel for the husband to prepare an order, encompassing such findings and recommendations, to be submitted to the district court for approval. The wife filed objections to the proposed order, apparently before the order was approved by the court commissioner. Thereafter the court commissioner entered into the record a document designated "FINDINGS AND REPORT OF COURT COMMISSIONER," which indicated that his findings were set forth in the proposed form of order submitted to the district court. The order was approved by the district court as submitted except that, in response to the objections, the district court changed a provision requiring the costs of visitation to be shared equally by the parties. The district court, in a handwritten insertion, altered this provision to provide that the wife would pay only $100 per year toward such costs.

The order encompassing the court commissioner's findings and recommendations, as approved by the district court, significantly expanded the husband's visitation rights and established a very specific visitation schedule. The order additionally provided that neither party was found in contempt; that there was no change in circumstances warranting a change in monthly child support; that the wife's remarriage was a change in circumstances such that the husband should not be required to pay any of the wife's medical insurance or expenses; that as long as the wife's employment provided health insurance she was required to carry such insurance for the benefit of the child--the cost of such insurance to otherwise be divided equally between the parties; and that the wife was not to allow or encourage the child to call anyone but the husband "daddy." The order was amended on September 22, 1988, to incorporate the previously inserted change regarding costs of visitation and to include Memorial Day as one of the holidays on which the husband was entitled to visitation in alternating years. This appeal was taken from the amended order.

Subsequent to these proceedings, this Court decided Foster, 768 P.2d 1038, which also arose in Laramie County district court and which addressed a similar challenge to a divorce decree modification proceeding referred to a court commissioner. The analysis in Foster is equally applicable to the instant case, and it will be repeated here only in abbreviated form. In Foster we considered the constitutional ¹ and statutory ² provisions for court commissioners and synthesized the applicable provisions in this manner:

Thus, under the Wyoming Constitution, court commissioners may perform "such other duties * * * as shall be prescribed by law." The legislature has determined that those duties include taking evidence, making findings, and reporting the same to the district court, which in turn is required to review all proceedings had before court commissioners.

Id. at 1041.

In Foster, the court commissioner found a substantial change in circumstances warranting an increase in child support. That portion of the hearing in which the court commissioner summarized his findings was transcribed and submitted to the district court along with a prepared order. We noted, however, that these findings made no mention of the evidentiary basis relied upon but rather simply consisted of a series of conclusions without evidentiary support. Id. at 1041. We further observed that there was no indication that the district court conducted any review beyond reading and signing the order. Id. at 1041. In reversing the district court in Foster, we said [W]e hold that, pursuant to Wyo. Const. art. 5, § 14 and Wyo. Stat. § 5-3-307 (1977), an assignment to a court commissioner to take evidence and make findings in a child support modification proceeding is not improper, but the district court must be apprised of the evidence received and relied upon by the court commissioner in making his findings, and the district court must independently review the evidence and findings in making its decision, with such review being indicated on the record.

Id. at 1042.

The procedure utilized in the instant case suffers from the same infirmities as those in Foster. Here, no part of the proceedings before the court commissioner was transcribed for review by the district court. ³ As in Foster, the order and amended order modifying the divorce decree contain only the conclusions of the court commissioner. By virtue of the wife's filed objections to the modification order the district court undoubtedly gained some insight into the factual contentions of the parties, but these filed objections did not provide an adequate evidentiary basis upon which the district court could review the findings of the court commissioner. In Foster, we stated:

Section 5-3-307(a)(v) provides that, when the court commissioner takes evidence and makes findings, he is to report the same to the district court. We read that section...