MSC v. MCG, S-18-0191

• Citation: 442 P.3d 662
• Decision Date: 31 May 2019
• Docket Number: S-18-0191
• Parties: MSC, II, Appellant (Petitioner), v. MCG, Appellee (Respondent).
• Court: Wyoming Supreme Court

442 P.3d 662

MSC, II, Appellant (Petitioner),

v.MCG, Appellee (Respondent).

S-18-0191

Supreme Court of Wyoming.

May 31, 2019

Representing Appellant: MSC, II, pro se.

Representing Appellee: No appearance.

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

GRAY, Justice.

[¶1] Father appeals the denial of his W.R.C.P. 60(b)(6) motion for relief from an income withholding order. Father also challenges the district court clerk’s assessment of an $85.00 fee pursuant to Wyo. Stat. Ann. § 5-3-206(a)(vii). We affirm.

ISSUES

[¶2] We address the following issues:

I. Did the district court err in denying the W.R.C.P. 60(b)(6) motion seeking relief from an income withholding order?

II. Was the $85.00 fee under Wyo. Stat. Ann. § 5-3-206(a)(vii) properly assessed when no transcripts were requested?

FACTS

[¶3] On December 19, 2012, the district court entered an order establishing custody and support for the parties’ two minor children, apparently based on a hearing that occurred on September 4, 2012.¹ Each of the parties was represented by counsel. The district court waived the requirement that the parties file financial affidavits. It did not determine a statutorily presumed amount of child support, but did find that "[d]eviation from the child support guidelines is necessary[.]" The district court found that Father was incarcerated, "and is not scheduled to be released until late November, 2012" and was "not realistically able to earn imputed income." The district court found that it was in the children’s best interests that Father pay the statutory minimum child support—fifty dollars per month—pursuant to Wyo. Stat. Ann. § 20-2-304(b) (LexisNexis 2011).² As required, the district court also entered an income withholding order. Wyo. Stat. Ann. § 20-6-204(a) (LexisNexis 2011).

[¶4] On April 2, 2018, more than five years after the Order Establishing Custody and Support was entered, Father, relying on W.R.C.P. 60(b)(6), filed a pro se motion entitled "Petitioner’s Motion for Relief from Child Support Order." However, that motion asked the district court "to relieve him from the Income Withholding Order , filed December 19, 2012."

[¶5] Father contended that the minimum support obligation under Wyo. Stat. Ann. § 20-2-304(b) (LexisNexis 2011) facially contradicts 42 U.S.C. § 667(b)(2). This section of the federal statutes establishes a "rebuttable presumption " that the amount calculated for support under state guidelines is the appropriate amount. 42 U.S.C.A. § 667(b)(2) (West 2011). In his motion, Father argued Wyo. Stat. Ann. § 20-2-304(b) creates an irrebuttable presumption in violation of the supremacy clause of the United States Constitution. U.S. Const. art. VI, cl. 2 ; Wyo. Stat. Ann. § 20-2-304(b) (LexisNexis 2011). The Wyoming Legislature repealed Wyo. Stat. Ann. § 20-2-304(b) on July 1, 2018. 2018 Wyo. Sess. Laws Ch. 42.

[¶6] No responsive pleading was filed, and the district court did not rule on Father’s motion for relief. Accordingly, Father’s motion was "deemed denied" under W.R.C.P. 6(c)(4).³ Father appealed. The district court clerk charged the $85.00 fee required by Wyo. Stat. Ann. § 5-3-206(a)(vii). Father objected, claiming that because no transcripts were necessary for his appeal, the fee was improperly assessed. On appeal, Father asserts that mandatory minimum child support is unconstitutional, and he challenges the propriety of the $85.00 fee.

[¶7] Mother, who would receive any child support Father paid, did not participate at the trial court level or in this appeal. On being served with a copy of Appellant’s brief pursuant to W.R.A.P 7.07, the Wyoming Attorney General’s office responded to Father’s claim that Wyo. Stat. Ann. § 20-2-304(b) is unconstitutional by asserting that because "Appellant’s challenge is to the income withholding order and not the original child support order, it does not affect a substantial right and is not appealable." The trial court ordered Child Support Services of Wyoming and the Laramie County Attorney to respond to Father’s objection to paying the filing fee. Child Support Services responded that it was not involved in this case. The Laramie County Attorney filed a response asserting that Wyo. Stat. Ann. § 5-3-206(a)(vii) required the filing fee. The record does not contain any decision from the district court on the filing fee issue. Father did not name Laramie County or the Laramie County Clerk of District Court as Appellees, and no one responded to Father’s claim that he should not have been charged a filing fee in this Court.

DISCUSSION

I. Did the district court err in denying the W.R.C.P. 60(b)(6) motion seeking relief from an income withholding order?

[¶8] Essential to appellate review, under any applicable standard of review, is the requirement that an appellant must present cogent argument and authority to support his claim. "For more than thirty-five years [now 59 years], this Court has summarily affirmed cases or issues in cases that are not presented with cogent argument or pertinent authority." Hamburg v. Heilbrun , 891 P.2d 85, 87 (Wyo. 1995) ; see also Earlywine v. Peterson , 885 P.2d 861, 864 (Wyo. 1994) ; Wyoming Game and Fish Comm’n v. Thornock , 851 P.2d 1300, 1304 (Wyo. 1993) ; State ex rel. Reece v. Wyoming State Bd. of Outfitters & Prof’l Guides , 931 P.2d 958, 959 (Wyo. 1997). Father’s brief fails to satisfy this requirement.

[¶9] Rule 60(b)(6) provides:

(b) Grounds for Relief from a Final Judgment , Order, or Proceeding . — On motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ...

(6) any other reason that justifies relief.

W.R.C.P. 60(b)(6) (emphasis added). "[T]he express purpose of this rule is to provide the courts with the means of relieving a party from the oppression of a final judgment ... on a proper showing where such judgments are unfairly or mistakenly entered." Kennedy v. Kennedy , 483 P.2d 516, 518 (Wyo. 1971). "An order denying relief under Rule 60(b) is appealable ...." McBride v. McBride , 598 P.2d 814, 816 (Wyo. 1979).

[¶10] Father’s Motion for Relief from Child Support Order, in spite of its title, requested only relief from the Income Withholding Order. Contrary to that request, the body of Father’s motion contested the validity of the child support order, not the Income Withholding Order. Specifically, he claimed the minimum obligation under Wyo. Stat. Ann. § 20-2-304(b) violates federal law. Thus, although Father requests that he be relieved "from the Income Withholding Order ," he apparently does not distinguish between an income withholding order and an order establishing his child support. His motion requests that his child support obligation be vacated and that the district court return any money he has paid in child support. He presents no argument that the Income Withholding Order, itself, was improper.

[¶11] Father could have actually sought relief from the child support order under W.R.C.P. 60(b), if that was his intent. A challenge to an income withholding order can be brought under the procedures set forth in the Income Withholding Act. In addition, there are statutory procedures for modification of a child support order. See, e.g. , Wyo. Stat. Ann. §§ 20-6-216 and 20-6-209 (LexisNexis 2017). The statutory grounds for challenging an income withholding order include: modification, termination or suspension of the support order; full payment of arrearages; modification to conform to statutory maximum withholding limitations; inability to deliver withheld income to obligee because of an invalid delivery address; an agreement with the obligee; an improper service of notices; disputes over the amount of current support; and/or disputes over the identity of the obligor. Id. These statutes make it clear that a challenge to a child support order is not the same as a challenge to an income withholding order.

[¶12] Father has not provided any cogent argument supporting his challenge to the Income Withholding Order. He has not provided any authority indicating that a challenge to the Income Withholding Order could result in the relief he seeks. We summarily affirm denial of Father’s Rule 60(b) motion seeking relief from the Income Withholding Order.

[¶13] Even if we were to assume, as suggested in the dissent, that Father actually intended to challenge the original order establishing his child support, there are significant reasons to summarily affirm denial of his 60(b) motion. First, Father fails to present a record which would enable review of his claim. Montoya v. Navarette-Montoya , 2005 WY 161, ¶ 5, 125 P.3d 265, 268 (Wyo. 2005) ("It is [the Appellant’s] burden to supply this Court with a sufficient record so that a proper evaluation of the trial court’s decision can be conducted."). The record in this case does not establish that the presumptive minimum child support was applied to Father as the result of an irrebuttable presumption. There is no financial affidavit, either then or now, showing Father’s income when the child support was established. The district court did not calculate a presumptive amount of child support. The district court did not make findings about income of either of the parties.

[¶14] The court did make these findings: (1) deviation from the support guidelines was necessary; (2) Father was not scheduled to be released from prison until late November 2012; (3) Father was not realistically able to earn imputed income; and (4) it was in the children’s best interest that Father pay $50.00. These findings do not necessarily indicate that Father did not have income from other sources, and they do not necessarily indicate his monthly income was less than $200.00. Under Wyo. Stat. Ann. § 20-2-304(b), Father’s presumptive child support would have been $50.00 if his monthly income was $200.00. Wyo. Stat. Ann. § 20-6-204(a) (LexisNexis 2011). The finding he was "not realistically able to earn imputed income" might mean he was not able to earn...