Johnson v. Johnson
| Decision Date | 10 April 1986 |
| Docket Number | No. 85-222,85-222 |
| Parties | Darla Dolores JOHNSON, Appellant (Plaintiff), v. Paul K. JOHNSON, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
David E. Westling, Casper, for appellant.
Hugh M. Duncan, Casper, for appellee.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
This case originates from a 1980 separation agreement and divorce decree which returned to the trial court on a payment show-cause motion by the ex-wife and a motion to modify by the ex-husband in order to eliminate agreed alimony installment payments. The appeal by the ex-wife is taken from the adverse decision which affected alimony termination.
We affirm in part and reverse in part by remand.
The issues stated by the appellant, Darla Johnson, are:
Appellee, Paul Johnson, differently states the issues:
This court will address the appeal by these issues:
(1) Was the trial court correct in its analysis of the agreement as involving alimony and not a property-settlement arrangement?
(2) Having determined that the issue is alimony, is a required change of circumstance of either party proven?
(3) Is any other basis of alimony termination demonstrated?
Darla Johnson and Paul Johnson, M.D., were married in 1962, and a child, Paul Kassis, was born in 1964. Franklin Todd Chilcote, a child of a prior marriage, born to Darla in 1959, was adopted by Paul Johnson after their marriage. After moving to Casper, Wyoming, where Dr. Johnson practices medicine, the parties came to divorce by complaint, separation, property settlement and alimony agreement, and resulting decree in March, 1980.
Their disaffinities now reappear in a motion to show cause filed by Darla Johnson on April 15, 1985, supported by affidavit contending for delinquency in agreed alimony payments, and with a petition for restraining order to deter nonpayment by court order and decree. Paul Johnson responded by motion for an order to show cause filed in May, 1985, alleging both present overpayment and a change in circumstance justifying alimony termination.
An initial hearing was held on May 22, 1985, before Judge Dan Spangler, who, by order filed June 18, defined "personal net income" as involved in the computation of alimony pursuant to both the separation agreement and divorce decree. The proceeding then continued for later trial before Judge Harry E. Leimback, on the motion of Darla Johnson for contempt citation, and the motion of Paul Johnson to modify. 1
In the order of August 30, 1985, from which the present appeal is taken, the trial court determined, by application of the computative method utilized in the order of June 18, that no deficiency in payment under the terms of the separation agreement existed, and that an overpayment of $6,658.94 had been made by Paul Johnson. Secondly, the court determined that a material and substantial change in the circumstances of the parties existed since entry of the divorce decree in 1980; that Paul Johnson's alimony, child support and child education obligations should be terminated; and that the alimony overpayment should be forgiven.
As a consequence of the completely adverse decision of the trial court, Darla Johnson advances this appeal from the modification order and decree of August 30, 1985.
Our consideration involves the terminology of the separation agreement as it may be affected by subsequent events.
The agreement provided:
All provisions are then identically stated in the resulting divorce decree, except for paragraph 14, which was not included. 2
Alimony or Child Support
It is determined law of Wyoming by statute and case law that alimony provisions, even if originally created by agreement, are subject to modification for change of circumstances, but property settlement provisions cannot be similarly modified. Bjugan v. Bjugan, Wyo., 710 P.2d 213 (1985); McMillan v. McMillan, Wyo. 702 P.2d 1279 (1985); Hendrickson v. Hendrickson, Wyo., 583 P.2d 1265 (1978); Salmeri v. Salmeri, Wyo., 554 P.2d 1244 (1976); Lonabaugh v. Lonabaugh, 46 Wyo. 23, 22 P.2d 199 (1933).
We concur with the decision of the trial court that as to Darla Johnson the $3,400 monthly payments were alimony. This conclusion is based on terminology of the separation agreement in conjunction with the observation that essentially all of the community property acquired by the parties went to Darla Johnson by the agreement, and any present money payments in addition, as further property settlement arrangements, would not make sense. Additionally, that is what the parties designated the payment to be. This court is directed to seek enforcement of the intent of the parties in written agreements of the parties unless otherwise excusable by different legal principles. Chorney v. Chorney, Wyo., 383 P.2d 859 (1963). See Hurd v. Nelson, Wyo., 714 P.2d 767 (1986). Cf. McMillan v. McMillan, supra. Determinative in this case is the phrase in the agreement "such obligation shall cease if the Wife dies or remarries." Neagle v. Neagle, Wyo., 481 P.2d 661 (1971). The parties designated the payments by agreement to be alimony and the provisions made were compatible with the description utilized.
Payment to the Children
We cannot concur that the provisions of paragraph 3 are for child support as determined by the trial court. In 1980, Franklin Todd Johnson was 21, and Paul Kassis Johnson was 16. By 1985, Franklin was likely out of school, at age 26, and Paul was 21. Contingent upon the death of the mother, the children's payment right would continue until 1990, when Franklin would be 31, and Paul 26. Whatever these payments may be, they are not child support of the conventional kind.
Since in 1985 both sons were of age, we are concerned about jurisdictional problems since neither beneficiary of this paragraph of the agreement was represented at the court proceedings wherein agreement modification was requested. Additionally, the motion for order presented in behalf of the father did not in itself request the relief consequently granted by order of the court. There is time enough to resolve any question about the payment obligations under paragraph 3 if Darla Johnson dies before December 1, 1990 and the father and sons contest the issue at that time. No jurisdiction existed for entry of that portion of the order in the absence of the requested relief by pleading and some arrangements so that the adversely affected parties would then be within the jurisdiction of the court with a right to defend. Nation v. Nation, 715 P.2d 198 (1986.)
Alimony Computation
We do not now determine whether the first order entered June 18, 1985, was an appealable order to be waived when no appeal was later taken from that order, since the substance of the order was adopted by the second order and decision from which the present appeal results. The computation of income was not stated as an issue of appeal by appellant's brief or in oral argument. Consequently, the decision and order of June 18, 1985, then readopted in the further order of August 30, 1985, will be considered as the law of this case as to the method for income computation under the separation agreement and original decree. 5 Am.Jur.2d Appeal and Error § 744. Zanetti v. Zanetti, Wyo., 689 P.2d 1116 (1984); Knadler v. Adams, Wyo., 661 P.2d 1052 (1983). Additionally, reason and a factual basis exist for the decision made. Wangler v. Federer, 714 P.2d 1209 (1986).
Substantial Change in Circumstance
Appellant Darla Johnson strongly contends that the determination of the trial court of a substantial change in circumstance required for modification constitutes an abuse of the discretion of the trial court premised on the evidence afforded at the trial. Involved by evidence, and noted in the court's conclusion, were the circumstances of Darla Johnson involving salary income and benefits achieved by substantial inheritance which she was to receive shortly after the hearing date. This court has now approved the flexible-income alimony adjustment determination as applicable. This brings the substance of the question for consideration to whether change in circumstance exists if the alimony...
To continue reading
Request your trial
-
Broadhead v. Broadhead
...at the time the employment actually terminates or the employee retires, either of which might not occur until death. Johnson v. Johnson, Wyo., 717 P.2d 335 (1986); Paul v. Paul, supra, 631 P.2d 1060; Pavlica v. Pavlica, Wyo., 587 P.2d 639 (1978). Cf. In re Marriage of Brown, supra, 544 P.2d......
-
Feaster v. Feaster
...is the remarriage of the mother and her consequent improved circumstance versus the continued status of the father. Johnson v. Johnson, Wyo., 717 P.2d 335 (1986); Ayling v. Ayling, Wyo., 661 P.2d 1054 If we are going to reverse prior law and permit or premise change of circumstance on remar......
-
Maher v. Maher
...contrasted with a court-imposed payment responsibility which was not voluntarily assumed by the prior marital partner. Johnson v. Johnson, 717 P.2d 335, 340 (Wyo. 1986). Accordingly, we do not find Maher's argument to be Abuse of Discretion [¶12] In the alternative, Maher submits that the d......
-
Parker v. Parker, 87-208
...by the preclusive effect of federal law, which could involve future modification in a change-of-circumstance context. Cf. Johnson v. Johnson, Wyo., 717 P.2d 335 (1986). Among the multitude of cases considering USFSPA, see Annot., 10 U.S.C.A. § 1408, and to be identified by Shepardization of......