Glenn v. Glenn

• Court: Wyoming Supreme Court
• Writing for the Court: Before MACY, C.J., and THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT; CARDINE; URBIGKIT
• Citation: Glenn v. Glenn, 848 P.2d 819 (Wyo. 1993)
• Decision Date: 16 March 1993
• Docket Number: No. 92-126,92-126
• Parties: Orland P. GLENN, Appellant (Defendant), v. Emily M. GLENN, Appellee (Plaintiff).

Page 819

848 P.2d 819

Orland P. GLENN, Appellant (Defendant), v. Emily M. GLENN, Appellee (Plaintiff).

No. 92-126.

Supreme Court of Wyoming.

March 16, 1993.

Orland P. Glenn, pro se.

No appearance by appellee.

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

CARDINE, Justice.

This appeal is from an order modifying appellant's child support obligation by reducing it to a monthly payment of $100. Appellant contends that his Rawlins penitentiary inmate incentive pay should not be subject to child support obligations at all.

We affirm.

Appellant presents these issues:

1. The district court exceeded its jurisdiction when it ordered that appellant pay child support out of income received from the Wyoming State Penitentiary's Incentive Pay Program.

2. The district court exceeded its jurisdiction when it ordered that the appellant pay child support out of income which totals less than that affording garnishment jurisdiction under W.S. 40-14-505(c).

3. The district court exceeded its jurisdiction and abused its discretion when it ordered the appellant to pay child support in an amount which equals and/or exceeds the appellant's income.

4. The district court erred and abused its discretion when it ordered child support payments as a subterfuge for awarding the appellee a second judgment against the appellant for acts which were resolved in an earlier and separate tort action.

Orland P. Glenn (appellant) and Emily Glenn were married in 1968. They were divorced September 21, 1987. Because of appellant's threats and violent acts, a protective order had been issued. Other protective measures were included in the divorce decree such as requiring the presence of a peace officer when he removed his belongings.

The divorce decree required appellant to pay child support in the amount of $110.00 per child per month. Since the parties had five children, the initial payments were $550.00 per month. Appellant made seven payments of $550.00 and one payment of $275.00. Beginning in April of 1988 appellant was in arrears. The monthly amount owing has been reduced twice, apparently due to emancipation of two of their minor children. Even with those reductions, appellant was $19,085.00 in arrears of his child support obligation as of December of 1991.

On July 19, 1991, appellant filed a petition for temporary modification of child support. Appellant stated that his change of circumstance was his conviction of a felony and subsequent sentence for a term of "natural life" in the Wyoming State Penitentiary. Appellant's conviction and subsequent incarceration stem from the attempted first degree murder of Emily Glenn, his ex-wife, when he shot her in front of one of their children.

In his petition, appellant claimed that he has monthly personal expenses for items not provided by the Wyoming State Penitentiary and that those expenses meet or exceed his monthly income; therefore, he has nothing left with which to pay child support. Appellant also alleged that his income will not substantially change during the period of his incarceration and that the court should modify the child support order to meet his change in circumstances.

The district court conducted a hearing on the petition to modify on December 5, 1991. The district court found that there was a substantial change in circumstances which allowed the court to reduce appellant's child support obligation. The district court entered an order reducing appellant's child support obligation to $100.00 per month starting January 1, 1992, and continuing until all of the parties' children reach the age of majority, are emancipated, or become self supporting. Appellant filed a timely notice of appeal from the district court's order.

Appellant argues that the district court abused its discretion. Concerning abuse of discretion, we have said:

"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances."

Roberts v. Roberts, 816 P.2d 1293, 1297 (Wyo.1991) (quoting Martinez v. State, 611 P.2d 831, 838 (Wyo.1980)).

When we review a child support order that is within the statutory guidelines, we have said that "the child support guidelines 'shall be rebuttably presumed to be the correct amount of child support to be awarded.' " Hasty v. Hasty, 828 P.2d 94, 98 (Wyo.1992) (quoting W.S. 20-6-302(a)).

PAYMENT OF CHILD SUPPORT OUT OF THE WYOMING STATE PENITENTIARY'S INCENTIVE PAY PROGRAM

Appellant admits that he receives between $60 to $80 per month in prison incentive pay. Wyoming Statute 7-16-203 (1987) allows a person in confinement to receive compensation as specified by the Board of Charities and Reform. This section has now been amended in recognition of the establishment of the Department of Corrections. W.S. 7-16-203 (Supp.1992).

Any earnings accrued by the prisoner are to be distributed in accordance with the following provision:

(a) Payment for services performed by any prisoner shall be deposited in the trust and agency account at the institution and shall be disbursed for the purposes provided in this subsection and in the order specified:

(i) Personal necessities;

(ii) Victim compensation;

(iii) Support of dependent relations of the prisoner;

(iv) Reimbursement for the services of public defender or court appointed counsel; and

(v) Remaining funds shall be paid the prisoner upon parole or final discharge.

W.S. 7-16-205 (1987). (This section has also been amended see W.S. 7-16-205 (1992)). Appellant contends that the order in which the items are listed establishes their priority. Appellant argues, therefore, that child support obligations are a lower priority than personal necessities of the prisoner and he should pay nothing.

Appellant fails to make clear what necessities he would be deprived of as a result of the child support order. While it is true that child support obligations are not the first on the list, we need not now decide the effect of the listing in this case, for appellant has made no credible showing that payment of this minimal child support will deprive him of necessities during his prison incarceration. Since child support obligations are specifically designated in the statute, it is clear that the legislature intended they be paid where reasonably possible.

ORDERING APPELLANT TO PAY CHILD SUPPORT WHICH EQUALS AND/OR EXCEEDS HIS INCOME

Appellant argues that the district court exceeded its jurisdiction and abused its discretion when it ordered him to pay child support in an amount which "equals and/or exceeds" his income. Appellant then cites two cases for the proposition that an incarcerated parent is not liable for child support unless it can be shown that he has income or assets sufficient to make the payments. Clemans v. Collins, 679 P.2d 1041, 1042 (Alaska 1984); Matter of Marriage of Edmonds, 53 Or.App. 539, 633 P.2d 4, 5 (1981), overruled by Matter of Marriage of Willis, 109 Or.App. 584, 820 P.2d 858 (1991). The Oregon Court of Appeals has now decided that a father cannot escape his financial obligation to his children simply because he is behind bars. Therefore, appellant's citation to Edmonds need not be addressed. Even so, what the district court did in this case was consistent with Clemans. Clemans holds that if an incarcerated parent has no ability to pay, he is not liable for child support. Here, however, the incarcerated parent does have the ability to pay.

Appellant acknowledges that he receives $67.50 a month from the Wyoming State Penitentiary and $36.00 a month in military disability payments. Therefore appellant has a monthly income of $103.50. Appellant also acknowledges that he receives monetary gifts from persons outside of the penitentiary. During a ten-month period these gifts totaled $185.83.

In the cases appellant cites, the incarcerated person had no income. Those cases are distinguishable because here appellant has admitted income sufficient to meet the child support obligation the judge ordered. Our research has uncovered additional cases which show that many courts follow the Clemans approach, that is, if the incarcerated parent does not have income, he is not required to pay child support during his incarceration. Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867 (2 Dept.1984); Pierce v. Pierce, 162 Mich.App. 367, 412 N.W.2d 291 (1987). Pierce also acknowledges that if the incarcerated parent does have assets or income while in prison, that income can properly be applied against the outstanding support obligation. Pierce, 412 N.W.2d at 293. We agree with this rule. When an incarcerated parent has income, that income can fairly be applied to the child support obligation.

The rule we adopt is consistent with Clemans, and it is not as far as some courts have gone. The Nebraska Supreme Court has ruled that in all cases an incarcerated parent should pay child support. Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615, 618 (1985). The Nebraska court reasoned that the obligation should not be modified where the means to pay the obligation was eliminated through criminal activity.

It must be remembered that appellant did receive a substantial reduction in the amount of child support he is required to pay. He is appealing because he wanted the obligation suspended until the end of his term of natural life. The district judge declined to do this but did reduce the amount in accordance with appellant's ability to pay.

The district judge did what the child support guidelines required of him. The statute requires that if the parent has an income of less than $500.00, the child support award must be made in accordance with ability to pay, but in no event shall the award be less than...