Pasenelli v. Pasenelli

• Decision Date: 21 October 2002
• Docket Number: No. 02-11.,02-11.
• Citation: 2002 WY 159,57 P.3d 324
• Parties: Kathryn PASENELLI, Appellant (Petitioner), v. Robert PASENELLI, Appellee (Respondent).
• Court: Wyoming Supreme Court

57 P.3d 324

2002 WY 159

Kathryn PASENELLI, Appellant (Petitioner), v. Robert PASENELLI, Appellee (Respondent).

No. 02-11.

Supreme Court of Wyoming.

October 21, 2002.

Tammy A. Burt of Harris Law Firm, P.C., Evanston, Wyoming, Representing Appellant.

Mike Cornia, Evanston, Wyoming, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ. HILL, Chief Justice.

[¶ 1] Appellant, Kathryn Pasenelli (Mother), filed a petition in the district court seeking to modify a divorce decree so as to increase the child support payments due her by Robert Pasenelli (Father). The district court denied that motion and Mother contends the district court abused its discretion both in interpreting the parties' stipulation regarding child support, as well as in applying the statutory child support guidelines.

[¶ 2] We will modify, but will otherwise affirm, the district court's order and remand for entry of a revised order consistent with this opinion.

ISSUES

[¶ 3] Mother states these issues:

I. Did the trial court abuse its discretion in improperly denying Kathryn Pasenelli's petition to modify child support?

II. Did the trial court abuse its discretion in the manner in which [it] applied the child support guidelines?

Father abbreviates that statement of the issues to this terse phrase: "Did the trial court abuse its discretion [in] denying the modification?"

FACTS

[¶ 4] Proceedings in this matter commenced on December 5, 1997, when Father filed a complaint for divorce. A stipulation settling the issue extant between the parties was filed in the district court on March 18, 1998. That stipulation revealed that the parties were the parents of four children, who were, at the time, ages ten, eight, three, and nine months. Mother was awarded primary physical custody of the children and has been their primary caretaker throughout their lives. Father was required to pay Mother $950.00 per month in child support for the four children. The stipulation contained this provision:

"... It is agreed that the parties' income shall be reviewed forty-eight (48) months from the date of this agreement, however, no change in support shall be made unless the support amount will change by twenty percent (20%) or more per month from the amount existing in this agreement. However, pursuant to sections 20-6-302 and 20-6-306, W.S.A (1997) as amended, either party may petition for a review and adjustment of the child support order under the procedure provided for therein."

The stipulation also provided that Father would pay Mother rehabilitative alimony in the amount of $400.00, for 48 months.² The alimony was to be paid to Mother so that she could complete a four-year college degree, thus enabling her to better provide for herself and her children. The terms of the stipulation were "approved, confirmed and incorporated" into the divorce decree which was entered on March 20, 1998.

[¶ 5] On September 14, 2000, Mother filed a petition to modify the decree of divorce, alleging that the incomes of both Mother and Father had changed to such an extent that it would change the child support due her by 20% or more per month. On September 26, 2000, Father answered that petition contending that the parties' stipulation and the decree of divorce prohibited Mother from seeking a modification of child support until at least March 20, 2002. The district court held a hearing at which both parties testified. There was no disagreement about what Father's income was (approximately $45,000.00 per year) and what the presumptive support for the four children would be (approximately $1,350.00 per month). The only disagreement was what income should be attributed to Mother. Mother did not work, as she was going to college and caring for the four children. However, Mother agreed that a minimum wage income should be attributed to her for purposes of the child support computation. That attribution of income to Mother did not change Father's presumptive support level of $1,350.00. Father contended that Mother should be able to earn a lot more than minimum wage and that the district court should take into account the fact that Mother's parents contributed to paying many, if not most, of her household expenses. Father also contended that the district court should consider that Father had remarried and that he and his new wife had a child together, and wife had two other children from previous relationships. Complicating matters for Father, his new wife had returned to Mexico because of a problem with her visa and he was having to send her as much as $800.00 a month for support (though she too lived with parents and/or relatives).

[¶ 6] Mother's appeal challenges the reasoning contained in the district court's decision letter, as well as the order denying her motion to modify child support. First, the district court reasoned that the alimony was really more in the nature of child support and, therefore, Mother was already receiving the equivalent of $1,350.00 in child support. The district court also concluded that the stipulation recited above meant "that there was no modification of child support contemplated or intended by the parties during the forty-eight month period following the divorce unless for some reason there [weren't] four children to support and even then the amount of child support was specifically stated. There would be no review or change of the child support." Continuing, the district court found that Father was "over employed, in that he works two jobs and 80 hours a week to generate his current income. [Mother] has chosen to go to school and currently is under employed. She has finished three years of college and expects to earn a Bachelor of Science degree in the spring of 2002, approximately 48 months after the decree of divorce. The Court finds that the imputed income of $750.00 per month based upon minimum wage as suggested by [Father], is unrealistically low considering that she has completed three years of college. She is certainly capable of earning at least the amount earned by [Father] in his janitorial service job."

[¶ 7] The district court also found grounds on which to deviate from the presumptive child support level established by the governing statute. Those grounds were: "That [Father] has found time outside of his eighty-hour work week to woo and wed a new wife and as a result has another wife and child to support;" and also "[t]he children are getting older, some in their teens, and it requires more to support them. On the other hand, [Mother] is receiving the benefit of a home with expenses paid by her parents. The foregoing factors would result in a reduction of the amount of child support set forth in the guidelines of $1,350.00 per month to $1,150.00. However[,] because of the agreement, no increase will be awarded."

STANDARD OF REVIEW

[¶ 8] The district court viewed its role, in deciding the issues presented to it, as being governed by rules of contract construction. We view agreements with respect to child support with favor; however, we have held that child support agreements are not contracts and contract law has no place in the consideration of child support agreements. The primary consideration regarding child support agreements is the best interests of the child, and we will not turn to contract law to abrogate this controlling consideration. Sharpe v. Sharpe, 902 P.2d 210, 213-14 (Wyo.1995). Moreover, a custodial parent may not bargain away a child support obligation. That obligation inures to the benefit of the child, not the custodial parent. Whitt v. State ex rel. Wright, 2001 WY 128, ¶ 19, 36 P.3d 617, ¶ 19 (Wyo.2001); Hurlbut v. Scarbrough, 957 P.2d 839, 842 (Wyo.1998); Bellamy v. Bellamy, 949 P.2d 875, 877 (Wyo.1997); also see Wright v. Wright, 5 P.3d 61, 62-64 (Wyo.2000); and Garver v. Garver, 981 P.2d 471, 474 (Wyo.1999).

[¶ 9] Our methodology in analyzing cases such as these has been well summarized by Justice Thomas:

We have had occasion to consider the statutory provisions in the context of petitions to modify child support in several instances. Cranston v. Cranston, 879 P.2d 345 (Wyo.1994); Smith v. Smith, 863 P.2d 624 (Wyo.1993); Pauling v. Pauling, 837 P.2d 1073 (Wyo.1992); Hasty v. Hasty, 828 P.2d 94 (Wyo.1992); Roberts v. Roberts, 816 P.2d 1293 (Wyo.1991); and Morehead v. Morehead, 811 P.2d 721 (Wyo.1991). In Morehead, we articulated the proposition that the guidelines structure a rebuttable presumption that constitutes a goal upon which judicial discretion remains in place to deviate from the guidelines. In Roberts, we noted the twenty percent deviation establishes a change of circumstances sufficient to justify a modification, but we held the court may deviate from the guidelines if it articulates a finding on the record that the application of the guidelines would be unjust or inappropriate. In Hasty, we identified an abuse of discretion by the district court in concluding it had to apply the guidelines strictly and could not deviate from them by considering support obligations to later-born minor children. In Pauling, we rejected an argument that the statute requires modification of child support upon a finding there would be a twenty percent change by application of the guidelines. There, we rearticulated the concept of a rebuttable presumption that modification would be warranted when application of the guidelines demonstrated the twenty percent deviation. We held the trial court's discretion to deviate with respect to modification of an existing support order refuted the argument that the legislature had interfered with the discretion of the court. In Smith, we held there had been no abuse of discretion in ordering a change in child support which resulted in nearly a threefold increase. We held there was no abuse of discretion even though the increase inhibited the father from qualifying for a home mortgage loan. Most recently, in Cranston, our ruling stated the

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