McCulloh v. Drake, 04-25

• Decision Date: 11 February 2005
• Docket Number: No. 04-25,04-25
• Citation: 105 P.3d 1091,2005 WY 18
• Parties: GERRI E. McCULLOH, Appellant v. JOHN W. DRAKE, Appellee.
• Court: Wyoming Supreme Court

2005 WY 18

105 P.3d 1091

GERRI E. McCULLOH, Appellant v. JOHN W. DRAKE, Appellee.

No. 04-25

Supreme Court of Wyoming. OCTOBER TERM, A.D. 2004.

February 11, 2005

Representing Appellant: William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellee: C.M. Aron of Aron & Hennig, Laramie, Wyoming.

HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and GUTHRIE, DJ.

KITE, Justice.

[¶ 1] Gerri E. McCulloh (Mother) filed a petition in the district court seeking to modify child support to increase John W. Drake's (Father) child support payments. The district court denied the petition and Mother contends it abused its discretion by refusing her full discovery of Father's financial assets, precluding increased child support because she did not raise that issue during a prior custody modification proceeding, and generally refusing to modify child support for other reasons. We reverse the district court's order in part, affirm in part, and remand for entry of a revised order consistent with this opinion.

ISSUES

[¶ 2] Mother states three issues for review:

1. Whether the district court erred in refusing to allow [Mother] full discovery of [Father's] financial status.

2. Whether the district court erred in concluding that [Mother] was precluded from raising the issue of a modification of child support based upon a modification of child custody because she failed to raise it at the time child custody was modified.

3. Whether the district court otherwise erred in its refusal to modify child support.

Father presents only two issues:

1. Whether it is an abuse of discretion for the trial court to deny modification of child support where there has been no substantial change in the income of the non-custodial parent.

2. Whether it is an abuse of discretion for the trial court to deny modification of child support when the custodial parent seeks deviation from presumptive child support based only on the amount of property owned by the non-custodial parent, rather than his income.

FACTS

[¶ 3] We have twice addressed other issues arising from the parties' divorce decree in McCulloh v. Drake, 2001 WY 56, 24 P.3d 1162 (Wyo. 2001), and Drake v. McCulloh, 2002 WY 50, 43 P.3d 578 (Wyo. 2002). As we stated in those decisions, the district court granted the parties' divorce on October 8, 1999, awarding them shared physical custody of their minor son. The original divorce decree imputed income of $1,800.00 per month to Mother and $12,000.00 per month to Father. On the basis of those amounts, the court ordered Father to pay $1,200.00 per month in child support. That amount constituted an upward deviation from the required statutory amount.

[¶ 4] In 2000, the district court granted Mother's petition to modify custody and awarded her primary custody. Neither party raised child support as an issue in the custody modification proceedings. Thus, it remained $1,200.00 per month.

[¶ 5] The present case began in December of 2002, when Mother filed a petition to modify child support.¹ In the petition, Mother alleged there was a sufficient change in circumstances to modify child support by 20 percent or more because of: (1) the increase in Father's net income and decrease in Mother's net income; (2) the change in physical custody of the minor child; (3) the financial conditions of the parties; (4) inflation; (5) the current Wyoming child support guidelines; and/or (6) the needs of the minor child. Father denied Mother's claims.

[¶ 6] On January 10, 2003, Mother served Father with her first set of interrogatories and requests for production of documents requesting information regarding gross income, sources of income, accounts, investments, monthly expenses, outstanding obligations, any debtors, tax returns from 1999-2002, pay stubs, assets, property interests, income from rental/lease property, development plans, earnings from oil well(s), and earnings from partnerships, trusts, and real estate. Father provided income tax returns for 2000 and 2001, but otherwise stated that he had previously produced "voluminous" discovery on past income and objected to Mother's requests on the basis that they were "irrelevant, outside the scope of WRCP 26 and not likely to lead to the discovery of admissible evidence with regard to child support, overly burdensome, and intended for improper purposes."

[¶ 7] Mother filed a motion to compel discovery. The district court held a hearing on the motion on March 17, 2003, and ordered Father to provide his 2002 tax returns and schedules as they became available. The court also ordered Father to provide copies of trust agreements, and trust income information for the years 2000-2002 from any trusts of which Father was a beneficiary and/or trustee, information regarding sales of properties in Virginia, any debtors, interests in real property since 1999, income receivable from rental/lease property, earnings from the Texarkana oil well(s), earnings from partnerships, and price and terms related to the sale of Florida real estate.

[¶ 8] On May 12, 2003, Mother filed a renewed motion to compel discovery. The court set a hearing on the motion as well as ordering Father to appear and show cause why he should not be held in contempt of court for failing to abide by the court's order compelling discovery. The hearing was held on June 5, 2003, and the court again ruled generally in favor of Mother and additionally required Father to provide information regarding specific trusts and his 1998 and 1999 tax returns.

[¶ 9] On June 11, 2003, Mother served Father with her third set of requests for production of documents, requesting more financial information. Father filed a motion for protective order, to which Mother objected. At Mother's request, the district court held yet another hearing on August 7, 2003, after which the court held Mother's third set of requests for production of documents was "unduly burdensome" and that "such discovery is not likely to lead to the discovery of admissible evidence" and granted Father's motion for protective order.

[¶ 10] The district court held a hearing on the merits of the petition for modification of child support on September 19, 2003. In its decision letter and order, the court denied Mother's petition on the grounds that: 1) Father's net monthly income was essentially unchanged since the entry of the divorce decree; 2) Mother chose not to address child support at the 2000 custody modification proceeding and "no significant changes" had occurred in custody or income since then; and 3) the child support payments were adequate. Mother timely appealed.

STANDARD OF REVIEW

[¶ 11] As we described in Pace v. Pace, 2001 WY 43, ¶ 9, 22 P.3d 861, ¶ 9 (Wyo. 2001):

Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court. It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration. The determination of the best interests of the child is a question for the trier of fact. "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)].

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; "it means [exercising] sound judgment . . . with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Id., ¶ 9. We cannot sustain findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence. Id., ¶10. Similarly, an abuse of discretion is present when a material factor deserving significant weight is ignored. Id. The party seeking modification must establish there has been a material and substantial change in circumstances, which outweighs the interest of society in applying the doctrine of res judicata. Ready v. Ready, 2003 WY 121, ¶ 11, 76 P.3d 836,

¶ 11 (Wyo. 2003). The trial court is vested with discretion to modify the provisions of the divorce decree and, absent a grave abuse of that discretion, we will not disturb its decision. Id.

DISCUSSION

[¶ 12] Mother argues the district court abused its discretion when it denied her full discovery of Father's financial status; when it concluded she was precluded from raising the issue of modification of child support because she failed to raise it at the time child custody was modified; and when it refused to modify child support for other reasons.

1. Full Discovery of Father's Financial Assets

[¶ 13] While Mother argues the district court abused its discretion in refusing to allow her full discovery of Father's financial assets, Father responds that she was granted "enormous leeway" in discovery and all relevant income and property information. On June 11, 2003, Mother filed her third set of requests for production of documents. Those requests included:

REQUEST NO. 1: Please produce a current net worth of your estate including current values of all assets. In your net worth statement, please list and describe your current assets in the following categories and include the information requested in parenthesis:

a. Cash (current amount, locations, interest rate);

b. Certificates of Deposit (current amount, dates of maturity, interest rate)[;]

c. Stocks and bonds (issuer, number of shares, types, current values, and locations);

d. Tax refunds due to you, if any (amounts);

e. Insurance policies (face amount, cash value, and name of company);

f. Accounts and notes receivable (current amount, owner, obligor)[;]

g. Real Estate (location/description, estimated current value and income if any);

h. Mutual funds (current values, companies, types, and locations);

i. Equipment (types and estimated current values);

j. Motor vehicles, boats, and airplanes (description and estimated current value);

k. Antiques (description and

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