Nuspl v. Nuspl

• Decision Date: 10 April 1986
• Docket Number: No. 85-191,85-191
• Parties: John J. NUSPL, Appellant (Plaintiff), v. Martha Marie NUSPL, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 341

717 P.2d 341

John J. NUSPL, Appellant (Plaintiff), v. Martha Marie NUSPL, Appellee (Defendant).

No. 85-191.

Supreme Court of Wyoming.

April 10, 1986.

Rex O. Arney, of Redle, Yonkee & Arney, Sheridan, for appellant.

No appearance for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

This appeal invokes the propriety of taking judicial notice of the cost of raising a child to justify a modification order increasing support payments as a matter of evidence and exercised discretion. We reverse and remand.

BACKGROUND

Martha Nuspl, appellee, and John Nuspl, appellant, were divorced in Wyoming in 1976. The divorce decree granted custody of the couple's three children, then ages eight years, six years, and eight months, to appellee and ordered child support in the amount of $125 per month per child. At the time the decree was entered appellant earned approximately $17,800 a year, and appellee was not working.

A petition for modification of the decree filed by the mother in March, 1985, sought an increase in child support. In addition, the petition asked for two other modifications: allowing her to claim the children as dependents for income tax purposes, and requiring the father to share that cost of the children's medical expenses which was not covered by insurance. A hearing was held in July, 1985, with the parents as the only witnesses. The mother, who has not remarried, testified that she and the children had moved to Texas, where she obtained a teaching job. She also testified with regard to the expenses for raising the children, emphasizing the increase from the time of the divorce. In support of this testimony, she introduced an exhibit detailing her monthly expenses which showed that the expenses exceeded her monthly net income by approximately $40: $1,834 income (including the $375 received for child support) and $1,872 expenses. Her evidence further showed that the father's annual gross income increased from $17,000 to $38,000 in the past nine years.

The father testified as to his income and expenses by stating that his expenses were approximately $2,475 and his "take home" income was $2,100 per month. He also had an income tax refund of approximately $2,800 from the 1984 tax year. His expenses were for his second wife and their two young children.

From this evidence, the trial judge found that there had been "a tremendous increase" in both the father's earnings and the cost of living from then to now, which, together with the children being older, created a change of circumstances. The judge concluded that there had "been material changes of circumstances," and accordingly modified the child support obligation. In making this modification, the trial court stated that both parties were in the same situation. "Nobody can afford it, but the fact of the matter is, there are children and they require support." The court ordered a decree modification whereby each party would contribute to the children's support amounts directly proportional to parental incomes. Appellant, earning $38,000 per year, would contribute 38/60, while appellee, earning $22,000, would contribute 22/60. The court applied these fractions to what it determined to be the cost of raising children, i.e., $400 per month for one child, $600 for two children, and $700 for three. The final result was that appellant was ordered to pay $475 each month while there were three minor children, $380 while there were two, and $250 while there was one Appellant raises the following issues in his appeal from this modification: ²

                minor child. 1  The court also held each party liable for one-half any medical expenses not covered by insurance, and that appellee could claim two of the children for income tax purposes
                

"1. Did the trial court err in taking judicial notice of studies showing the cost of supporting children?

"2. Did the trial court abuse its discretion in granting Defendant's Petition to modify the child support provisions of the Decree of Divorce?"

JUDICIAL NOTICE

The father asserts that the trial court unacceptably took judicial notice of unspecified studies to ascertain the cost of raising children.

In arriving at his decision, the trial judge stated: "I have tried to figure this out by looking at different studies around * * *." He then recalled that the cost of raising children was as stated above. Counsel for appellant requested a citation of the studies upon which the trial court relied, since none were introduced in evidence, and the trial judge responded that he was not sure that there was any particular one upon which he had relied, although there was a study by the Agriculture Department and the State of Wyoming showing the cost to be $400 for a single child.

Rule 201, W.R.E., governs the taking of judicial notice of adjudicative facts. It provides that a court may take judicial notice even if not requested, and may do so at any stage of the proceeding. Subsection (b) limits judicial notice:

"Kinds of facts.--A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

Subsection (d) also operates to limit judicial notice in that it provides the opportunity for a party to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.

Concerning this opportunity for notice, Louisell and Mueller, Federal Evidence § 58, p. 449 (1977) states:

" * * * The question always to be answered is whether the court has in fact embodied in its findings or opinion an adjudicative fact not found in or supported by the formal evidence in the case, and if so, whether the fact in question is a fact properly noticeable."

There is no doubt that, in this case, the trial judge embodied in his findings and opinion the cost of raising a child. Neither party introduced evidence concerning the average cost of raising a child, yet the court modified the support payments based on the "fact" that it costs $400, $600 and $700 to raise one child, two and three children, respectively. The question is whether that fact should be properly noticed under the Wyoming Rules of Evidence.

The advisory comment to Rule 201, F.R.E. (the same as Rule 201, W.R.E.), describes the proper circumstances for taking judicial notice. In order to dispense with the usual method of establishing adjudicative facts, introducing evidence ordinarily consisting of the testimony of witnesses, judicial notice dispenses of this process "A major risk when the trial judge resorts to outside sources to verify facts is that he may choose to decide the whole dispute on the basis of his own independent research. * * * [S]uch procedure should be discouraged, at least until the parties are given ample opportunity to examine the sources in question before the judge formulates his own opinions and to present arguments upon the meaning of such sources and suggest additional sources."

                as unnecessary.  The comment goes on to note that "[a] high degree of indisputability is the essential prerequisite."   Louisell and Mueller, supra, § 57, p. 439, in speaking of this indisputability requirement and facts readily verifiable, notes that
                

The fact noticed in the present case was the "cost" of raising one, two and three children. We do not think it arguable that this "fact" can be generally known within the jurisdiction of the trial court, and because such cost varies widely, depending on a myriad of circumstances, we do not find that it is a fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. The cost of raising these children is subject to reasonable dispute; it is not capable of accurate determination by resort to any study. The cost of raising a child is the heart of the controversy in support proceedings, and it will vary in each case depending upon the child's health, educational needs, age, and a host of other circumstances including, specifically, the economic circumstances of the parents.

Even though the "average cost" of raising a child was disclosed in studies relied on by the trial court in this case, taking judicial notice of such cost created two problems. First, the risk of the trial court deciding the whole dispute on the basis of his research, without allowing the parties opportunity to attack the accuracy or relevance of the studies, became real. The second problem springs from the first. In determining the dispute on the basis of the studies, the trial court failed to consider all of the circumstances unique to this case.

We note the case of Martin v. Brasseaux, La.App., 422 So.2d 548 (1982), where the Louisiana Court of Appeal rejected the trial court's determination of a support award based solely on the court's judicial notice of the cost of raising a child. That court stated:

"There is no authority whatsoever to support the proposition that a trial court may take judicial notice of the costs of supporting a child. * * * [P]laintiff, in an action for child support, has the burden of proving what the needs of the child are by a preponderance of the evidence." 422 So.2d at 553 asterisk.

Moore v. Moore, 173 Conn. 120, 376 A.2d 1085 (1977), draws an appropriate distinction. There the trial court had properly taken judicial notice that the children were four and one-half years older since the original decree, and that there had been inflation. However, it was not proper to judicially notice that there were commensurately greater costs for clothing and maintenance. The case held that this was true because it is arguable whether a child's expenses increase commensurately with age (albeit not a very valid argument in the real world of teen age children in modern society). The vice of the argument is a...