Lewis v. Lewis, 85-60

CourtUnited States State Supreme Court of Wyoming
Citation716 P.2d 347
Docket NumberNo. 85-60,85-60
PartiesJerome Fredrick LEWIS, Appellant (Defendant), v. Rosemary LEWIS, Appellee (Plaintiff).
Decision Date24 March 1986

Page 347

716 P.2d 347
Jerome Fredrick LEWIS, Appellant (Defendant),
Rosemary LEWIS, Appellee (Plaintiff).
No. 85-60.
Supreme Court of Wyoming.
March 24, 1986. *

Richard H. Honaker, Rock Springs, for appellant (defendant).

Leonard A. Kaumo, Rock Springs, for appellee (plaintiff).

Page 348

Before THOMAS, C.J., and ROSE, ** ROONEY, *** BROWN and CARDINE, JJ.

CARDINE, Justice.

This is an appeal from an order modifying a divorce decree. Appellant, Jerome Lewis, contends that his ex-wife's petition for modification should have been dismissed because it did not allege a substantial change of circumstances. In addition, he argues that his ex-wife failed to prove a change in circumstances that justified the modification of the child support provisions of the decree. We affirm.


On September 21, 1983, appellee Rosemary Lewis filed a complaint for divorce against her husband, Jerome Lewis. She sought custody of their three children, reasonable child support, and an equitable distribution of property. The case never went to trial, however, because on October 12, 1984 the parties reached a settlement agreement. District Judge Kenneth Hamm entered a decree of divorce which incorporated the child custody and support aspects of the agreement.

Mrs. Lewis received custody of the children during the nine-month school year while Mr. Lewis took custody during the summer months. In addition, the parties granted each other detailed visitation rights for the noncustodial periods. Mr. Lewis agreed to pay child support of $300 per month but was permitted under the agreement to deduct

"payments he personally makes for medical, dental and optometric expenses, for educationally related expenses including school lunches, for babysitting expenses, clothing, and all other items relating to the children except for food consumed by the children while they are with [him]."

Eleven days after the divorce decree was entered, Judge Hamm entered an order transferring all further proceedings in the matter to District Judge Robert Hill. The record does not indicate who requested the change of judge, but it may have related to Mrs. Lewis' decision to immediately petition for a modification of the divorce decree. On October 26, 1984, two weeks after the settlement agreement and decree, Mrs. Lewis filed a petition for modification. Although the petition's title included the word "Modification," the petition did not allege a change of circumstances. Instead, it stated that the original decree "does not adequately resolve the issue of child custody and child support with reference to the parties' three minor children." Mrs. Lewis requested that the court increase her ex-husband's child support obligation for their three children from $300 to $450 per month, eliminate the deduction provision, and give her custody during the entire year. Mr. Lewis opposed the petition; and the matter was set for hearing on December 18, 1984, a little more than two months after entry of the original decree.

At the start of the hearing, Mr. Lewis moved for dismissal on grounds that the petition for modification did not allege a change of circumstances. The district court declined to rule on the motion until evidence had been taken and hinted that Mrs. Lewis might be allowed to amend her petition at the close of the evidence. Mr. Lewis renewed his motion to dismiss during closing argument contending that the vagueness of the petition had prevented him from preparing properly for trial. The court denied the motion, however, and permitted Mrs. Lewis to amend the petition. The court then addressed the change-of-circumstance issue as if it had been raised in the petition.

Mr. and Mrs. Lewis were the only witnesses to testify at the hearing. Mrs. Lewis stated that her income had decreased in the two months since the divorce because the hospital where she worked as a nurse had reduced her hours. She was taking home about $1050 per month, but it cost her about $1165 per month to support herself and her children. Her yearly income

Page 349

prior to the divorce was $15,000, or about $1200 per month.

Neither party testified that there had been a change in the children's needs between October 12th, the date of the original decree, and December 18th, the hearing date. There was a dispute, however, as to whether Mr. Lewis' income had increased during that period. Mr. Lewis testified that his employer raised his annual salary--from $36,000 to $38,500--prior to the October 12th decree. Mrs. Lewis, on the other hand, stated that her ex-husband usually received a raise on October 20th each year although she admitted that she had no way of knowing when he received a raise for the year involved. No evidence was presented which showed that Mr. Lewis misrepresented or concealed his true income during settlement negotiations but it is clear from the modification petition that Mrs. Lewis and her attorney thought he was making $36,000 until he discussed his raise at the modification hearing.

The rest of the testimony involved Mrs. Lewis' reasons for entering into the original settlement. She stated that she signed the agreement because she was afraid her husband might refuse to pay anything if she won a substantial judgment in court. But she later admitted that the agreement was reached after extensive negotiations during which she received the advice of a lawyer of her choice.

After brief closing arguments, the district court reached its decision. The court observed first that there was no evidence that Mr. Lewis had taken advantage of his ex-wife during the settlement negotiations. If she entered the agreement out of fear, then her lawyer was at fault, not her ex-husband. Therefore, the parties had reached the original agreement at arm's length, and it could not be modified on grounds of duress or fraud.

Next, the court refused Mrs. Lewis' request to modify the original nine-month/three-month custody arrangement. According to the court, no evidence had been presented supporting a change. If anything, the evidence showed that the present arrangement worked very well.

Finally, the court found that there had been a change of circumstances as a result of the decrease in Mrs. Lewis' income since the date of the original decree. In addition, Mr. Lewis' income was more than it had appeared to the parties during bargaining, although it may not have actually increased after October 12th. The court increased Mr. Lewis' child support obligation from $300 per month to $450 per month, decreed that it be paid to the clerk of court rather than Mrs. Lewis, and eliminated the provision which allowed Mr. Lewis to deduct his direct child-related expenditures. The increase in child support was $50 per month per child or a total of $150 per month. This amount about equalled Mrs. Lewis' decrease in income.

Mr. Lewis appealed the district court's modification order, but Mrs. Lewis did not cross-appeal on her unsuccessful custody claim. Therefore, our review is limited to Mr. Lewis' issue. Broyles v. Broyles, Wyo., 711 P.2d 1119 (1985).


Mr. Lewis contends that his ex-wife's petition should have been dismissed because it failed to state a claim upon which relief could be granted. He points out that the petition contained no allegation of change in circumstances as required by §...

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8 cases
  • Connors v. Connors, 87-287
    • United States
    • United States State Supreme Court of Wyoming
    • 7 d2 Fevereiro d2 1989
    ...at 1255 (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). See also Nuspl v. Nuspl, 717 P.2d 341, 345 (Wyo.1986); Lewis v. Lewis, 716 P.2d 347, 351 (Wyo.1986); Grosskopf v. Grosskopf, 677 P.2d 814, 820 (Wyo.1984); and Harrington v. Harrington, 660 P.2d 356, 360 (Wyo.1983). This standa......
  • Feaster v. Feaster, 85-261
    • United States
    • United States State Supreme Court of Wyoming
    • 9 d3 Julho d3 1986
    ...CHANGE OF CIRCUMSTANCES A district court's modification decision will be reversed only if the court abused its discretion. Lewis v. Lewis, Wyo., 716 P.2d 347 (1986). " 'A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstance......
  • Weiss v. Weiss, S-09-0030.
    • United States
    • United States State Supreme Court of Wyoming
    • 9 d5 Outubro d5 2009
    ...preference for honoring divorce settlement agreements. Richard v. Richard, 2007 WY 180, ¶ 4, 170 P.3d 612, 614 (Wyo.2007); Lewis v. Lewis, 716 P.2d 347, 350 (Wyo.1986). However, even if we could say that the nebulous provision set forth above was capable of enforcement (see supra ¶ 10), the......
  • Parry v. Parry, 88-8
    • United States
    • United States State Supreme Court of Wyoming
    • 5 d4 Janeiro d4 1989
    ...the decree, because in doing so they infringe upon the principle of freedom of contract as well as concerns of finality. Lewis v. Lewis, Wyo., 716 P.2d 347 (1986). Nevertheless, this court has allowed prospective modification of child support provisions reached by agreement of the parties, ......
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