Johnson v. Johnson

Decision Date12 February 2020
Docket NumberS-19-0120
Citation458 P.3d 27
Parties Andrew P. JOHNSON, Appellant (Defendant), v. Katie L. JOHNSON, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Clark D. Stith of Stith Law Office, Rock Springs, Wyoming.

Representing Appellee: Farrah L. Spencer and Monica J. Vozakis of Long Reimer Winegar LLP, Evanston, Wyoming.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, Justice.

[¶1] Andrew P. Johnson (Father) appeals from the district court's decree of divorce and order awarding custody and dividing property and debts between him and Katie L. Johnson (Mother). Father argues the court abused its discretion when it restricted visitation with his four children to two hours of supervised visitation every other week until he addressed the court's concerns regarding his anger, when it divided the marital property, and when it found him voluntarily underemployed for declining to work overtime. We conclude the court properly ordered supervised visitation and divided the marital property, but abused its discretion in calculating Father's child support amount. We thus affirm in part and reverse in part.

ISSUES

[¶2] We rephrase and reorder Father's issues on appeal:

I. Whether the district court abused its discretion in ordering supervised visitation.
II. Whether the district court abused its discretion in dividing the marital property.
III. Whether the district court abused its discretion when it imputed to Father income attributable to overtime earned before the preceding 24-month period when calculating child support.
FACTS

[¶3] Mother and Father married in December 2002. In 2015, Father filed for divorce. Mother, who was nine months pregnant with their fourth child at the time, obtained a protection order against Father and was awarded temporary custody of the children. Mother and Father reconciled after their child's birth later that year and Father dismissed the action.

[¶4] Two years later, Mother obtained a protection order against Father under the Domestic Violence Protection Act. The circuit court found an act of domestic abuse occurred, granted Mother primary residential custody of the children, and awarded Father visitation every other weekend and every Tuesday evening. Mother simultaneously filed for divorce. After Father answered the complaint and counterclaimed, Mother moved "for a temporary order awarding child custody, suspended or supervised visitation, child support, and possession of [the] marital home" due to Father's history of domestic violence and his behavior during a recent visit with their oldest child. The court granted the motion in January 2018, awarding Father supervised visitation with the children every other Saturday for two hours, but reserving any decision on financial matters.

[¶5] At the one-day bench trial in May 2018, the primary dispute concerned Father's visitation arrangement, the division of marital property, and the amount of child support Father would pay. Mother presented testimony from herself, one of Father's supervisors regarding overtime available to Father, and a local Sheriff's Deputy regarding a death threat that Father made against Mother. Father presented testimony from himself, several of his immediate family members regarding Father's relationship with Mother and the children, and a local real estate agent regarding attempts to sell the marital home and its condition.

[¶6] With respect to supervised visitation, the precise issue revolved around Mother's fear of Father's temper and abuse. Mother argued that Father's pattern of abuse made supervised visitation in the children's best interests until Father completed either an anger management or domestic violence course, as well as a parenting class. Father disputed Mother's abuse allegations, arguing that he was "a fully capable, competent, loving parent" who never had issues with his children until the court ordered supervised visitation.

[¶7] With respect to division of property, the primary issues were the court's disposition of the marital home and its evaluation of the respective merits of the parties under Wyo. Stat. Ann. § 20-2-114(a). In her pretrial memo, Mother requested that the court order the sale of the marital home and award 60 percent of the proceeds to her, and 40 percent of the proceeds, along with his pension, to Father. But at trial she argued it was in the children's best interests to remain in the marital home, so she should obtain the home after divorce. Father argued that granting the home to Mother would unfairly benefit her, and suggested that Mother could not perform the maintenance required on the home. He further argued that the parties' best option would be for him to acquire and refinance the home, and pay Mother approximately one-half of the equity.

[¶8] With respect to child support, the crux of the dispute was whether Father was voluntarily underemployed. Mother argued that Father worked overtime "any time [it] was offered" throughout their marriage until 2015 when he filed for divorce, and that he stopped working overtime between 2015 and 2017 so that his child support payments would be lower. She argued that the court should find Father voluntarily underemployed because he chose not to work overtime in 2016 and 2017, and base his child support on his income while "he was working overtime" in 2013 and 2014. Father disagreed with Mother's characterization of his motive for not working overtime, arguing that he stopped working overtime after deciding that it "was not in the best interests of me nor was it good for my family relationships."

[¶9] In its divorce decree, the court awarded Mother sole legal custody and primary physical custody of the children, and required Father's visits to be supervised unless and until he successfully completed the conditions outlined in the court's order. The court disposed of various property, specifically awarding the marital home to Mother and requiring her to refinance the balance of the debt in her own name. It also found Father voluntarily underemployed and imputed to him potential overtime income, resulting in a $2,300 monthly child support payment instead of the presumptive amount of $1,870. Father timely appealed.

STANDARD OF REVIEW

[¶10] We review the district court's divorce decree for any abuse of discretion.

Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court. Scherer v. Scherer , 931 P.2d 251, 253–54 (Wyo. 1997) ; Triggs v. Triggs , 920 P.2d 653, 657 (Wyo. 1996) ; Basolo v. Basolo , 907 P.2d 348, 352 (Wyo. 1995).... "We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle." Fink [v. Fink] , 685 P.2d [34, 36 (Wyo. 1984) ].
A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. Pinther v. Pinther , 888 P.2d 1250, 1252 (Wyo. 1995) (quoting Dowdy v. Dowdy , 864 P.2d 439, 440 (Wyo. 1993) ). Our review entails evaluation of the sufficiency of the evidence to support the district court's decision, and we afford the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Triggs , 920 P.2d at 657 ; Cranston v. Cranston , 879 P.2d 345, 351 (Wyo. 1994). Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained. Jones v. Jones , 858 P.2d 289, 291 (Wyo. 1993). Similarly, an abuse of discretion is present " ‘when a material factor deserving significant weight is ignored.’ " Triggs , 920 P.2d at 657 (quoting Vanasse v. Ramsay , 847 P.2d 993, 996 (Wyo. 1993) ).

Jacobson v. Kidd , 2018 WY 108, ¶ 14, 426 P.3d 813, 820 (Wyo. 2018) (quoting Meehan-Greer v. Greer , 2018 WY 39, ¶ 14, 415 P.3d 274, 278–79 (Wyo. 2018) ).

DISCUSSION
I. Supervised Visitation

[¶11] Father forwards various arguments as to why the court abused its discretion when it imposed a graduated visitation schedule. He argues that the court abused its discretion by not addressing his fundamental right to associate with his children under Wyo. Stat. Ann. § 14-2-206, that insufficient evidence supported the court's finding that he abused Mother and the children, and that it erred by conditioning his visitation rights on obtaining counseling for the children. A thorough review of the court's order and record reveals no abuse of discretion.

[¶12] The children's best interests are "paramount in any award of custody and visitation, and the trial court has a large measure of discretion in making that award." Arnott v. Arnott , 2012 WY 167, ¶ 31, 293 P.3d 440, 455 (Wyo. 2012) (quoting Stonham v. Widiastuti , 2003 WY 157, ¶ 17 n.8, 79 P.3d 1188, 1194 n.8 (Wyo. 2003) ). Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2019) outlines the non-exclusive list of factors the court must consider when determining the children's best interests:

(i) The quality of the relationship each child has with each parent;
(ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed;
(iii) The relative competency and fitness of each parent;
(iv) Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;
(v) How the parents and each child can best maintain and strengthen a relationship with each other;
(vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved;
(vii) The ability and willingness of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;
(viii) Geographic distance between the parents'
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