Gordon v. Gordon, 18207
| Decision Date | 23 August 1990 |
| Docket Number | No. 18207,18207 |
| Citation | 800 P.2d 1018,118 Idaho 804 |
| Parties | Terry E. GORDON, Plaintiff-Appellant, v. Leroy E. GORDON, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Paul C. Keeton, argued, Keeton & Tait, Lewiston, for plaintiff-appellant.
Jay P. Gaskill, argued, Randall, Blake, Cox, Risley & Trout, Lewiston, for defendant-respondent.
In this child support case we are called upon to determine whether a non-parent is required to pay child support pursuant to a decree of divorce and whether the motion to amend the decree complied with the time requirements of I.R.C.P. 60(b).
Terry E. Gordon and Leroy E. Gordon were married in March of 1974. At the time of the marriage, Leroy Gordon had three children from a prior marriage which were subsequently adopted by Terry Gordon. Terry Gordon had one child from her prior marriage who was subsequently adopted by Leroy Gordon. One child, Travis Gordon, was born to the parties and is the only natural child of their marriage. None of these five children are involved in this appeal.
The instant appeal centers around Ginger Gordon who was born in 1976 to Brenda Titus who left her with Terry and Leroy Gordon in September, 1978 because she was unable to take care of her. In January of 1979 the Gordons unsuccessfully attempted to adopt Ginger. The Gordons thereafter attempted to become Ginger's legal guardians but the guardianship was never completed and Ginger continued to live with the Gordons under a power of attorney. Ginger lived with the Gordons from 1978 through 1987, was known by the family name, and the Gordons treated her as though she were a member of the family.
In 1987, Terry Gordon filed a divorce action against Leroy Gordon and a divorce decree was entered December 17, 1987. In an affidavit filed during the divorce proceedings Terry Gordon indicates that Ginger Gordon was staying with the family pursuant to a court ordered guardianship. However, the record indicates that the guardianship was only temporary and had expired by the time the divorce action was filed. The decree of divorce ultimately entered ordered Leroy Gordon to pay the sum of $100 per month per child for three minor children; namely, Mickey Gordon, Travis Gordon and Ginger Gordon. 1 On January 10, 1989, Leroy Gordon filed a motion to modify the decree claiming that at the time of the divorce he mistakenly believed that he had a legal duty to support Ginger. The magistrate denied the motion on the ground that the motion should have been made within six months of the date of entry of the decree pursuant to I.R.C.P. 60(b) and was not timely. The magistrate further found that since there was no substantial change in the circumstances of the parties that the motion for modification should be denied.
The district court reversed the magistrate and ruled that Leroy Gordon had no obligation to pay support for Ginger pursuant to I.C. § 32-706 which requires child support to be paid when the parent owes a duty to support the child. The district court stated "because the child is not the natural child, nor has the child been adopted by Defendant, Defendant has no legal obligation of support."
In order to modify a child support order the moving party must comply with the provisions of I.C. § 32-709 or I.R.C.P. 60(b). Idaho Code § 32-709 allows the modification of a child support order only "upon a showing of a substantial and material change of circumstances." In Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963), the Court stated:
An application for modification of a decree awarding child support, upon the ground of a material permanent change in the circumstances of the parties since the entry of the decree, is addressed to the sound judicial discretion of the trial court. (Citations omitted) .... [O]nly when there is a manifest abuse of discretion will the determination of the trial court be interfered with on appeal.
85 Idaho at 450-51, 380 P.2d at 221.
In the present case Leroy Gordon claims that his discovery of a mutual mistake of fact as to the legal status of Ginger and his mistaken belief that he had a duty to pay support is a substantial and material change of circumstances. However, both the magistrate court and district court found that there was no material change of circumstances and no authority has been cited to this Court that a mutual mistake of fact in and of itself constitutes a substantial change of circumstances. Furthermore, the record does not reveal any evidence of a substantial and material change in circumstances sufficient to warrant modification of the decree. Therefore, the finding of the magistrate that there is no change of circumstances warranting a modification of the order is supported by the record and is affirmed.
A party seeking relief from a final judgment under the provisions of I.R.C.P. 60(b) must file a motion within six months after entry of the judgment and assert facts which bring the case within the purview of the rule. Catledge v. Transport Tire Co., 107 Idaho 602, 691 P.2d 1217 (1984). Idaho Rule of Civil Procedure 60(b) is mandatory and states in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud ... (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), (3) and (6) no more than six (6) months after the judgment, order, or proceeding was entered or taken.
(Emphasis added.)
Leroy Gordon filed his motion for modification substantially more than six months after the divorce decree and order for support was entered. Consequently, any attempt to modify or set aside the judgment and order pursuant to subsection (1), (2), (3) or (6) will not be allowed because the applicable time limit under I.R.C.P. 60(b) had clearly expired. Catledge v. Transport Tire Co., 107 Idaho 602, 691 P.2d 1217 (1984). Furthermore, a Rule 60 motion is directed to the sound discretion of the district court and it is well established that
[M]otions under Rule 60(b) involve a nice balance between the interest in finality and the desire to achieve justice, and that the district courts, therefore, are given a very large measure of discretion in passing on those motions. The appellate courts pay considerable deference to that discretion in the district court.
The appellate court readily can reverse if the district court has not exercised discretion, as when it mistakenly thinks it lacks power to act. It can readily reverse also if the district court has granted a motion when it was powerless to do so, or if otherwise it has erred as a matter of law. But it will not set aside the district court's exercise of discretion unless it is persuaded that under the circumstances of the particular case the action of the district court is an abuse of discretion.
11 Wright and Miller, Federal Practice and Procedure: Civil § 2872, p. 261 (1973); see also § 2857; Sherwood & Roberts, Inc. v. Riplinger, 103 Idaho 535, 650 P.2d 677 (1982); Schraufnagel v. Quinowski, 113 Idaho 753, 747 P.2d 775 (Ct.App.1987).
Leroy Gordon argues that the relief contemplated in I.R.C.P. 60(b)(5) should apply in that it is no longer equitable that the judgment should have prospective application because he has discovered that he had no legal duty, i.e., guardianship, to pay support for Ginger. We disagree. A motion pursuant to the "no longer equitable" language of Rule 60(b)(5) however, implies some change in circumstances.
The rule allows relief if it is "no longer equitable" for the judgment to have prospective application. This provision is not a substitute for an appeal. It does not allow relitigation of issues that have been resolved by the judgment. Instead it refers to some change in conditions that makes continued enforcement inequitable.
11 Wright and Miller, Federal Practice and Procedure: Civil § 2863, pp. 206-07 (1973).
Therefore, we are of the opinion and hold that the condition for relief pursuant to Rule 60(b)(5) is similar to the requirements of I.C. § 32-709, i.e., some change in the circumstances of the parties is necessary to make the prospective application of the judgment inequitable. In this instant case both the magistrate and district courts determined that there was no change in circumstances. A review of the record supports those findings and the relief requested pursuant to Rule 60(b)(5) is not warranted.
Leroy Gordon also claims that the original decree is void and relief should be granted pursuant to Rule 60(b)(4). Leroy claims that because he is not the natural nor adoptive father of Ginger he owes no duty to Ginger, and therefore, the trial court did not have jurisdiction to order child support for Ginger.
In Puphal v. Puphal, 105 Idaho 302, 669 P.2d 191 (1983), this Court stated:
A void judgment is a ground for relief under I.R.C.P. 60(b)(4). However,
105 Idaho at 306, 669 P.2d at 195.
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