Mentock v. Mentock, No. 5548

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: RAPER; THOMAS, Justice, dissenting, with whom ROSE
• Citation: 638 P.2d 156
• Decision Date: 30 December 1981
• Docket Number: No. 5548
• Parties: Linda Kay MENTOCK, Appellant (Plaintiff), v. Joseph Clark MENTOCK, Appellee (Defendant).

Page 156

638 P.2d 156 Linda Kay MENTOCK, Appellant (Plaintiff),
v.
Joseph Clark MENTOCK, Appellee (Defendant). No. 5548. Supreme Court of Wyoming. Dec. 30, 1981.

Page 157

Robert W. Connor, Jr., Kennedy, Connor & Healy, Sheridan, signed the brief; and Jack Ryan appeared in oral argument on behalf of appellant.

Fred R. Dollison, Badley, Rasmussen & Shoumaker, Sheridan, signed the brief; and Fred R. Dollison, Sheridan, appeared in oral argument on behalf of appellee.

RAPER, Justice.

This appeal arises from a district court's denial of appellant's request for an increase in child support payments. Appellant contends that the district court abused its discretion in the matter by failing to adequately consider the welfare of the parties' child and acknowledge the detrimental impact of inflation upon appellant's ability to use the support payments, at their current levels, to provide for the child. Appellant also argues that the district court applied the wrong law in this case by ruling that there had to have been a change in circumstances which could not have been foreseen in order to warrant a change in the amount of the support payments. Finally, appellant questions the propriety of the district court's actions in attempting to negotiate a settlement.

We will affirm.

I

On June 6, 1970, the parties were married in Sheridan, Wyoming, where they resided. In 1973 a son was born, the only issue which resulted from the marriage. On August 1, 1975, appellant filed for divorce. A decree of divorce was rendered on September 9, 1975, which incorporated a settlement agreement between the parties. As a result, appellant received custody of the child while appellee was obligated to provide monthly child support payments in the amount of one hundred dollars. The appellee, by the terms of the agreement, would have custody of the child during the summer months upon his reaching age five. During the time the appellee had custody, support payments were to be suspended. The appellee agreed also to pay all medical expenses for the child. The record discloses that appellee has had the partial custody agreed upon, and he pays for life insurance and hospital insurance for the child. The division of the marital property was such that appellant received the marital residence.

In September, 1976, appellant moved to Missouri where she had lined up a job which, according to her motion to modify, was to "better her position in life, and raise the standard of living of herself and her child by accepting new employment * * *." This was only after appellant had moved the court for a modification of the divorce decree to change the visitation rights to reflect the move, including custody in appellee between June 10 and August 25 of each year; and the district court had granted the modification.

Then, sometime during 1979, appellant sold the family house. Her net proceeds from the sale totaled approximately $20,000. With that money, appellant bought an $8,000 Pontiac Trans Am and some household furniture. She also indicates she paid bills and made other expenditures such that only $500 of the proceeds remained at the time of the trial.

In addition to what has been required of appellee by agreement and decree, appellee has established for the youngster a $1,100 savings account, sends him a regular spending money allowance and has purchased him clothing. No claim had been made that appellee has in any way failed to comply with the divorce decree as modified.

It was in April of this year-1981-that appellant petitioned for another modification of the divorce decree. In her petition she asked that the monthly support payments be raised to $200. It should be noted that in her petition she acknowledged having received from appellee the previous month an offer to raise the support payments to $125, but that she had refused this and instead countered with a demand for an increase to $150.

Page 158

The case proceeded to hearing on May 7, 1981. Appellant contends that prior to commencement of the transcribed proceedings, the trial judge attempted to negotiate a settlement. There is nothing in the record to support this contention.

Following the hearing, the district court denied appellant's petition. From the order entered on June 1, 1981, embodying that decision, appellant has processed this appeal.

II

We will first turn our attention to the question of when may a district court raise monthly child support payments. The law in Wyoming is clear that, as a general rule, a divorce decree is res judicata on all issues therein decided. Heyl v. Heyl, Wyo., 518 P.2d 28 (1974). This doctrine is mandated by public necessity; there must be an end to litigation at some point, or else the legal system would become so bogged down that nothing would ever remain decided. Rubeling v. Rubeling, Wyo., 406 P.2d 283 (1965).

Nevertheless, this court has recognized that, in certain circumstances, modifications of divorce decrees are necessary. In order for a modification to be warranted, it must be established that there has been a material or substantial change in circumstances which outweighs society's interest in applying the doctrine of res judicata. Rubeling v. Rubeling, supra. The burden of proof lies with the party seeking the modification. Laughton v. Laughton, 71 Wyo. 506, 259 P.2d 1093, 43 A.L.R.2d 351 (1953).

When the modification sought involves the question of custody of the child, that child's welfare must be given paramount consideration. Laughton v. Laughton, supra. However, it is imprudent to contend that, when the question involves support payments, the matter should be decided without consideration of the paying parent's ability to pay, the recipient's spending habits, and all other surrounding circumstances. Redman v. Redman, Wyo., 521 P.2d 584, 587 (1974). See also, § 20-2-113(a), W.S.1977. ¹ This court in Redman agreed with the proposition that a child support order may not accurately reflect what children actually require but, rather, what the parent can reasonably be expected to pay. The circumstances of the parents are recognized by our controlling statute as well. Even in unbroken homes a child's monetary needs must be limited by the parents' income. Child support cannot be determined in a vacuum. If a child's wants and needs were to be the sole criterion, then child support may have to fall upon the state since few parents are able to raise their children without having to make do with what they have.

Appellant tries to point to Rubeling v....