Marquis v. Marquis

• Citation: 476 P.3d 212
• Decision Date: 20 November 2020
• Docket Number: S-20-0046
• Parties: Benjamin Greer MARQUIS, Appellant (Defendant), v. Laura Ann MARQUIS n/k/a Laura Ann Fausett, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

476 P.3d 212

Benjamin Greer MARQUIS, Appellant (Defendant),

v.Laura Ann MARQUIS n/k/a Laura Ann Fausett, Appellee (Plaintiff).

S-20-0046

Supreme Court of Wyoming.

November 20, 2020

Representing Appellant: Danielle L. Schumacher, Schumacher Law, P.C., Rock Springs, Wyoming.

Representing Appellee: Mark W Harris, Harris Law Office, P.C., Evanston, Wyoming.

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

GRAY, Justice.

[¶1] Benjamin Greer Marquis (Father) appeals from the district court's order modifying the child support he pays to Laura Ann Fausett (Mother), formerly Laura Ann Marquis, for the benefit of the parties’ three minor children. Father claims the district court abused its discretion by calculating child support without an evidentiary hearing. He challenges the district court's computation of his income, refusal to deviate downward from the presumptive support, and determination that shared contribution was unwarranted. We find no abuse of discretion and affirm. We deny Mother's Wyoming Rule of Appellate Procedure 10.05 request for sanctions.

ISSUES

[¶2] The issues are:

1. Should the Court summarily affirm the district court because Father failed to designate the record on appeal?

2. Did the district court abuse its discretion by not holding an evidentiary hearing before calculating child support?

3. Did the district court abuse its discretion in determining child support?

a. Did the district court abuse its discretion when it calculated Father's income?

b. Did the district court abuse its discretion when it did not allow a downward deviation from Father's presumptive child support?

c. Did the district court abuse its discretion when it did not use a shared responsibility calculation?

4. Is Mother entitled to costs and reasonable attorney fees?

FACTS

[¶3] The parties divorced in 2012, and Mother was awarded primary custody of their three minor children. Father was ordered to pay monthly child support of $863.07.

[¶4] Following the divorce, Father relocated to Williston, North Dakota. He remarried and his new wife (wife) has three children from a previous marriage. Father and his wife have a child together. In 2016, Father and his wife established Marquis Metal Works, LLC (Marquis Metal), an oil rig welding operation. Mother remained in Wyoming and also remarried. She and her husband have two children together. Mother continues to be a homemaker.

[¶5] In February 2018, Father filed a petition to modify custody, visitation, and child support, claiming a material change in circumstances. Mother responded with a petition to modify support. The parties reached an agreement on custody and visitation, and a Stipulated Order was entered in October 2019. The parties proposed that the remaining issues (child support and uncovered medical expenses) be presented to the district court through cross-memoranda with each party presenting written argument, supporting documentation, and proposed calculations. The district court accepted the parties’ proposal to submit written argument and in December 2019, without a hearing, entered its order modifying child support.

[¶6] The district court calculated Father's net income by adding Father's business income to his personal income and then deducting income taxes paid and certain depreciation, to arrive at a total net income for each of the preceding three years.

A. The 2016 Calculations

[¶7] The court determined Father's personal income was $62,259, as reflected on Father's personal tax return. The court then added Father's net business income to his personal income for child support purposes. In 2016, Father was the sole proprietor of Marquis Metal, which reported business income of $51,293. Marquis Metal had $46,429 in depreciation expense, which the court added back to the business income for a total of $97,722. The court next subtracted the portion of the depreciation expense attributable to Section 179 property—$23,528.¹ This resulted in net business income of $74,194. The court added Father's net business income and personal income, arriving at $136,453. Next, the court subtracted Father's federal income tax ($15,780) and state income tax ($944) to arrive at a 2016 net income of $119,729.

B. The 2017 Calculations

[¶8] The district court found Father's 2017 personal income was $75,000, based upon his W-2. After 2016, Marquis Metal was incorporated as an S corporation. This entity was in place at the time the 2017 tax return was filed. The district court calculated Father's business income based on his approximate 51% ownership of Marquis Metal.² Father's K-1 reflected his share of earned business income at $559,995. In 2017, Marquis Metal claimed $261,329 in depreciation expense and Section 179 deductions of $289,418. The court added 51% of the depreciation ($133,278) to Father's business income and then subtracted 51% of the Section 179 deductions ($147,992) from Father's business income. The court also added 51% of tax-free distributions ($3,739 and $64,514) to Father's business income. This computation resulted in business income of $613,534. Father earned 71% of the total income reported on his and his wife's personal tax return. The sum of Father's pro rata share of the personal and business income was $688,534. The court credited Father with 71% of the income taxes paid and deducted $216,431—71% of the $304,832 federal income tax—from Father's income. The district court subtracted $16,133—71% of the state income tax of $22,722—from Father's income. Finally, the district court subtracted $4,650 in Social Security and $1,088 in Medicaid taxes from Father's income. The district court calculated Father's 2017 net income at $450,232.

C. The 2018 Calculations

[¶9] The district court found Father's 2018 personal income was $76,923, as shown on his W-2. Based on Father's K-1 from Marquis Metal, it calculated his 2018 business income as $33,426. Marquis Metal deducted $312,410 in depreciation expense. Father's 51% of depreciation was $159,329. The court found none of this depreciation was Section 179 expense and added $159,329 to his income. The district court also attributed 51% of tax-free distributions ($6,723 and $213,125) to Father's income. Father's business income totaled $412,603 ($33,426 plus $159,329 plus $6,723 plus $213,125). His business and personal income totaled $489,526 ($412,603 plus $76,923). Father earned 67% of the total income reported on his and his wife's personal tax return, and the court attributed 67% of the income taxes to him. The court deducted $11,233—67% of the $16,766 federal income tax—from Father's income. The district court subtracted $1,294—67% of the $1,932 state income tax—from Father's income. The district court subtracted $4,769 in Social Security and $1,115 in Medicaid taxes from his income as well. Father and his wife received a federal tax refund of $56,772 and a state tax refund of $15,021. The district court added 67% of those refunds ($38,037 and $10,064) to Father's income. The district court calculated Father's net income for 2018 as $519,216.

[¶10] The district court averaged the calculated net income for these three years. It concluded Father had an average net annual income of $363,059 and an average net monthly income of $30,255. The court imputed to Mother a net monthly income of $1,186. Based on these numbers, the court determined Father's presumptive child support was $4,838 per month. The district court denied Father's request for a downward deviation based on substantial contributions and his support of other children pursuant to Wyo. Stat. Ann. § 20-2-307(b) and denied Father's request for a "shared responsibility child support obligation" pursuant to Wyo. Stat. Ann. § 20-2-304(c). It ordered Father to pay presumptive monthly support of $4,838. Father appeals.

DISCUSSION

I. Should the Court summarily affirm the district court because Father failed to designate the record on appeal?

[¶11] Mother contends that we should summarily affirm the district court's order because Father failed to designate the record and failed to cite to the record in his brief, as required by the Wyoming Rules of Appellate Procedure.

[¶12] W.R.A.P. 3.05(b) provides,

Appellant shall, contemporaneously with filing its brief in the appellate court and service of that brief upon appellee, file with the clerk of the trial court and serve on all parties and the appellate court clerk a designation for transmission of all parts of the record, without unnecessary duplication, to which appellant intends to direct the appellate court in its brief.

W.R.A.P. 7.01(g)(1) requires an appellant's brief to set forth the appellant's "contentions with respect to the issues presented and the reasons therefor, with citations to the authorities, statutes and pages of the designated record on appeal relied on[.]"

[¶13] Father concedes he failed to designate the record in accordance with the rules and that his brief lacks citations to the record. While Father did not designate a record when he filed his brief on March 27, 2020, he did file a designation of the record on May 22, 2020. Father's opening brief does not contain citations to the record but does contain citations to pertinent authority.

[¶14] This Court retains broad discretion over how to treat a violation of the Rules of Appellate Procedure. "The failure to comply ... does not affect the validity of the appeal, but is ground only for such action as the appellate court deems appropriate ...." W.R.A.P. 1.03(a). In Bingham v. Bingham , 2007 WY 145, ¶¶ 7–9, 167 P.3d 14, 17 (Wyo. 2007), the father failed to designate a record when he filed his brief on appeal; he did, however, designate a record after the mother filed her brief. The mother argued that the appeal should be dismissed for father's failure to comply with the Rules of Appellate Procedure. "Because Father ultimately designated a record for the Court's review, albeit late, we decline[d] Mother's invitation to dismiss the appeal based upon a violation of ...