Harrington v. Harrington, 5802
Decision Date | 11 March 1983 |
Docket Number | No. 5802,5802 |
Citation | 660 P.2d 356 |
Parties | Glenya HARRINGTON, Appellant (Plaintiff), v. Robert D. HARRINGTON, Appellee (Defendant). |
Court | Wyoming Supreme Court |
Mark J. White of White, Avery & Spurrier, Riverton, signed the brief on behalf of appellant.
L.B. Cozzens of Simpson, Kepler & Cozzens, Cody, signed the brief on behalf of appellee.
Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.
Glenya A. Harrington (appellant) petitioned the district court to modify the decree of divorce to raise the amount of child support to be furnished under the decree by her former husband, Robert D. Harrington (appellee), for the changed circumstance that appellee's income had increased substantially since the divorce. 1 The district court refused modification. Appellant presents the following issues:
We will affirm.
On March 19, 1979, appellant filed for divorce from appellee alleging irreconcilable differences in their marital relationship. The couple had been married for over twelve years at the time and had three children. On March 11, 1980, the District Court of the Fifth Judicial District, Park County, Wyoming, entered a decree of absolute divorce ending their marriage. The divorce decree provided for a division of the property and for the custody and support of the couple's three minor children. Appellant was awarded custody of the children with visitation rights and specified support payments by appellee. In regard to support payments the decree provided:
Since the divorce, appellee has met all his various child support obligations in a timely manner. By January 1, 1982, the escalator provision in the decree had increased appellee's basic support obligation, excluding insurance, medical payments, etc., from $750 per month to $918 per month. Appellant does not contend that appellee has ever failed to comply with the terms of the divorce decree.
Appellant's sole basis for seeking modification was the changed circumstance that appellee's income had increased substantially from when the divorce decree had been granted. On August 23, 1982, appellant's application for modification was tried. At the close of appellant's case, appellee's attorney moved for a directed verdict and no further evidence was presented. The trial judge ruled from the bench in favor of appellee and, in explanation, said:
In its final order denying modification the court found:
This appeal followed.
At the trial of this matter, appellant's attorney attempted to introduce into evidence a copy of appellant's and appellee's 1979 joint federal income tax return. Appellee's attorney objected, but the court indicated that it would receive the exhibit. This colloquy between the court and both attorneys occurred:
Thereafter, appellant's attorney, while examining appellee, elicited testimony of appellee's 1979 income and the amount of income entered on his and appellant's 1979 joint income tax return. The testimony established that in 1979 appellee had an income of approximately $40,000. Appellee also testified that in 1981, the last year before trial that his income was documented, he reported business income of $96,844, offset by farm losses of $68,794, for a total taxable income of $28,050. At the close of his direct examination of appellee, appellant's attorney then again moved for the admission of the 1979 tax return--plaintiff's exhibit 1--as well as two other tax return exhibits. The following exchange took place:
Because of what appellant perceived to be confusion in the record as to whether the 1979 tax return was admitted into evidence or not, both parties have, pursuant to Rule 4.04, W.R.A.P., 3 stipulated, in essence, that whether or not the 1979 tax return was itself admitted, its contents were revealed through appellee's testimony. Their stipulation, however, still leaves unanswered the question they raised as to whether or not the 1979 tax return--exhibit 1--was admitted. If, as appellant claims, the record is confusing on that point, the record remains confusing after her attempt to clear up the matter. Before going further, we must then determine what the record reveals. We find that the record reveals that appellant's exhibit 1--appellee's 1979 joint income tax return--was received by the district court; thus, there is no issue presented for us to decide.
Before going on, though, we note that appellant's first argument is mere sophistry in that whether or not the 1979 tax return was properly received or rejected by the district court, its relevant contents were fully revealed in appellee's testimony which was before the district court and appellant acknowledged as much in the aforementioned stipulation. In a judge-tried case, "a ruling erroneously excluding evidence is ordinarily considered harmless if other evidence has been allowed on the same point, on the theory that the evidence erroneously excluded would have been merely cumulative." 1 Louisell & Mueller, Federal Evidence § 20 at pp. 111-112 (1977).
We now reach appellant's second and third issues on appeal. Before discussing those issues, it is appropriate that we set out the law that guides us in these matters. In Mentock v. Mentock, Wyo., 638 P.2d 156 (1981), a case strikingly similar to the one before us in which a former wife sought increased child support, we summarized this court's views on modification of divorce decrees as follows:
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