Parry v. Parry, 88-8

• Decision Date: 05 January 1989
• Docket Number: No. 88-8,88-8
• Parties: Philip T. PARRY, Appellant (Defendant), v. Karen L. PARRY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1168

766 P.2d 1168

Philip T. PARRY, Appellant (Defendant), v. Karen L. PARRY, Appellee (Plaintiff).

No. 88-8.

Supreme Court of Wyoming.

Jan. 5, 1989.

James W. Gusea of Vines, Gusea & White, Cheyenne, for appellant.

Philip P. Whynott, Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, and MACY, JJ, and BROWN, J., Ret. ^* CARDINE, Chief Justice.

This is an appeal from a district court order denying the appellant's motion for retrospective modification of his divorce decree. The two issues we must consider in deciding this case are whether the district court could retrospectively modify the decree with respect to child support and whether the court erred in failing to eliminate or reduce alimony.

We affirm.

On May 23, 1984, appellee Karen L. Parry filed a complaint for divorce. For some time prior to the filing of the complaint, appellant Phillip T. Parry was living in New York and the appellee was living in Cheyenne. Against the advice of his several attorneys, appellant entered into a property settlement agreement with appellee on October 10, 1984. The agreement mentions four children: William, Ronald, Richard and Shannondoah. One of the provisions of the agreement provides:

"That the Defendant [appellant] shall pay to the Clerk of District Court, First Judicial District, child support by cash, certified check or money order, beginning on the 1st day of September, 1984, the sum of $800.00 per month, with said payment continuing until all of the minor children leave the Plaintiff's [appellee's] residence. One half of said support shall be paid on the 1st and one half shall be paid by the 15th of each month. When all the children have left the Plaintiff's residence Defendant will begin paying alimony in the amount of 1/2 his military retirement pay."

A decree of divorce was entered on October 23, 1984. One of the provisions of this decree, which is similar to the provision of the property settlement agreement mentioned above, states:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the sole care, custody and control of the minor offspring of the marriage, to wit: William, Ronald, Richard and Shannondoah, are hereby awarded to the Plaintiff, subject to the right of reasonable visitation of the Defendant. The Defendant is ordered to pay through the Clerk of this District Court, First Judicial District, the sum of two hundred dollars, ($200.00), per child per month. One half of said sum shall be paid on the first day of each month and one half shall be paid on the 15th day of each month, beginning on the first day of September, 1984. Said payments are to continue until said children reach their majority, are emancipated or leave the Plaintiff's residence, whichever last occurs. As each child reaches majority, is emancipated or leaves the residence, said support for the remaining children proportionally increases so that the total amount of $800.00 per month is paid to the Plaintiff for child support. Beginning the first month following the last payment of child support, the Defendant shall pay alimony to the Plaintiff in an amount equal to one half ( 1/2) of his military retirement pay." (Emphasis added.)

Three months later, on January 24, 1985, appellant filed a motion for relief from the decree. Appellant contended that he had misunderstood the support provision in the agreement, and that it was not until he reviewed the decree that he realized support would not decrease as each child was emancipated or reached legal age. A hearing on appellant's motion was held on April 18, 1985, and by order dated May 9, 1985, the motion was denied.

On August 5, 1985, appellee filed a motion for an order to show cause why appellant should not be held in contempt for not complying with the child support provision of the divorce decree. In response, appellant filed a motion to amend the divorce decree seeking a nunc pro tunc order reducing the child support to two hundred dollars per month per child "until such child reaches legal age, marries or becomes otherwise emancipated." Appellant also asked for elimination of alimony or reduction of alimony "to a reasonable sum." At a scheduling conference held on February 24, 1987, the court asked the parties to research the issue of whether it had the authority to modify the child support provision in a manner which would cancel or reduce the arrearages which had accrued before the filing of the petition for modification. Appellant filed a memorandum letter with the court which concluded that the issue had not been decided in Wyoming. On August 17, 1987, a hearing was held regarding appellant's motion to amend the decree of divorce and the appellee's amended motion for order to show cause. Following that hearing, the court entered an order in which it concluded that it lacked "the authority or power to modify the Decree of Divorce prior to the date of the filing of the Motion for such modification" and that "such modification shall take effect as of the date of the filing of said Motion." The court prospectively reduced child support and awarded judgment against the defendant for back child supportas of August 17, 1987, which by that time had accrued to $14,800. The court left intact the alimony provision of the original decree of divorce. It is from this order of November 18, 1987, that appellant appeals.

The first issue we will discuss is whether the district court had authority to retrospectively modify a decree of divorce with respect to child support. We hold that it did not have that authority. ¹ Generally speaking, district courts have authority to modify divorce decrees, including provisions for child support and alimony. See §§ 20-2-113, 20-2-116, W.S.1977. When a substantial change in circumstances outweighs considerations of finality, a modification is warranted. Mentock v. Mentock, Wyo., 638 P.2d 156 (1981). When a decree incorporates a settlement agreement, as in the instant case, courts are more reluctant to disturb the decree, because in doing so they infringe upon the principle of freedom of contract as well as concerns of finality. Lewis v. Lewis, Wyo., 716 P.2d 347 (1986). Nevertheless, this court has allowed prospective modification of child support provisions reached by agreement of the parties, upon a proper showing of a substantial change in circumstances. Id.

Retrospective modification is a different matter. If a court could retrospectively modify the rights of a party under a decree incorporating a settlement agreement, the agreement becomes virtually worthless. This development would violate well-established Wyoming law favoring settlement agreements. Mentock, 638 P.2d 156; Lewis, 716 P.2d 347. Furthermore, allowing retrospective modifications of divorce decrees may encourage default. A party might decide to stop payment and allow arrearages to accrue to a substantial amount, with the hope and anticipation that the court will cancel the accrued payments owed to the receiving party. We prefer a rule which encourages a party to seek modification of a divorce decree at the moment his financial situation changes. In the present case, appellant chose to simply stop making the required payments. We will not sanction this type of self-help by allowing retrospective modification of the decree.

In support of his position that Wyoming has allowed retrospective modification of child support payments, appellant cites Wardle v. Wardle, Wyo., 464 P.2d 854 (1970). In that case, a property settlement agreement was reached by the parties, and the parties subsequently modified the agreement. We upheld the district court's decision to modify the decree of divorce by cancelling past, unpaid child support payments, but distinguished the case from one in which the parties had not agreed, between themselves, to modify their initial settlement agreement:

"[S]ince August 1959 both Wardle and his former wife mutually consented and impliedly agreed that the wife would support the children and forego the benefit of child-support payments from Wardle and that he would forego the right to have custody of his children during summer months. Thus, the implied agreement of the parties, subsequent to the decree, prevented vested rights from accruing to either party (as far as the parties only are concerned). The case takes on a different complexion from one where only the husband is in default by failing to make monthly alimony or support payments." Id. at 856. (Emphasis added.)

In Wardle, we allowed the court to cancel child support arrearages only because there was an agreement subsequent to the original decree. This approach was consistent with our policy of encouraging settlement agreements and honoring freedom of contract. Because there is no subsequent agreement in the instant case, appellant's reliance upon Wardle is misplaced.

Appellant further suggests that the district court had the authority to retrospectively modify the divorce decree because prior to the 1987 amendment to § 20-2-113, the statute did not specifically prohibit retrospective modifications. We disagree. In his brief, appellant concedes that the majority rule is that any modification of a divorce decree relates only to the future, i.e., either from the time of entry of the decree of modification or from the date the petition for modification was filed. We are persuaded that this...