Pauling v. Pauling

• Decision Date: 20 August 1992
• Docket Number: No. 91-248,91-248
• Citation: 837 P.2d 1073
• Parties: D. Michael PAULING, Appellant (Defendant), v. Tamara K. PAULING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1073

837 P.2d 1073

D. Michael PAULING, Appellant (Defendant), v. Tamara K. PAULING, Appellee (Plaintiff).

No. 91-248.

Supreme Court of Wyoming.

Aug. 20, 1992.

Suzan C. Pauling of Schaefer and Associates, Laramie, for appellant.

Robert L. Nelson of Robert L. Nelson & Associates, Cheyenne, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT, ^* and GOLDEN, JJ.

MACY, Chief Justice.

Appellant D. Michael Pauling (the father) appeals from the lower court's order modifying his child support obligation.

We affirm in part and reverse in part.

The father offers the following issues on appeal:

I. Wyoming Statute § 20-6-306(a) is both unconstitutional and prejudicial as applied to Appellant's case.

II. The lower court's modification order requiring the Appellant to continue child support payments until minor child reached age of 21 was error.

III. The Appellant's obligation to pay excess medical expenses should be modified to permit Appellant to insure against that obligation and permit that insurance to be credited against computation of "net income" and guideline support amounts.

Appellee Tamara K. Pauling (the mother) adds another issue:

The Appellant's appeal is without merit and there is no good cause for the bringing of this appeal action, and Appell[ee] should be awarded her costs and expenses.

The father and the mother married in 1976 and had one child (the daughter). The parties subsequently divorced in June 1987. The divorce decree incorporated an executed property settlement and child custody agreement (the agreement). The agreement granted custody of the daughter to the mother and required the father to make child support payments of $300 per month.

On March 6, 1991, the mother filed a motion to modify the decree, alleging that a substantial change of circumstances had occurred after the court entered the divorce decree. The mother sought, among other things, an order requiring the father to pay child support payments in an amount suggested by the Wyoming child support guidelines because the father's income had increased by more than twenty percent. ¹ See Wyo.Stat. §§ 20-6-301 to -306 (Supp.1992). The mother also sought an order requiring the father to carry medical insurance for the daughter and to pay the daughter's medical expenses not covered by insurance.

On April 29, 1991, the district court commissioner held a hearing on the mother's motion to modify the divorce decree. Evidence introduced during the hearing revealed that, at the time the divorce was granted in 1987, the father was earning only nominal wages as a summer legal intern. By 1991, the father's "net income," as defined in § 20-6-301(a)(ii), had risen substantially to $2,034.70 per month. The mother's monthly take-home pay in 1991 was $2,411 per month, plus she received an additional $500 per month from the father ($300 in regular support payments, $100 for accrued back support payments, and $100 for reimbursement of marital debts).

The district court commissioner also heard testimony concerning medical insurance for the daughter. At the time of the divorce, the father was working in a temporary summer job and did not have insurance readily available, whereas the mother was working in a hospital and could provide the daughter with coverage at a reasonable rate. Because the father did not have insurance available, the mother agreed to provide the daughter with insurance and has continued to provide such insurance. The parties did not make any provision in the agreement itself concerning who should provide the daughter with insurance coverage or who should pay the medical bills not covered by insurance. Insurance for the daughter became an issue in the modification action in part because the daughter had recently incurred significant medical expenses of which $23,500 were not covered by the mother's insurance policy. The mother assumed all liability for the $23,500. According to the mother, the daughter will require further medical care.

After hearing all the evidence, the commissioner recommended that, pursuant to the child support guidelines, the father should pay $535 per month in child support payments until the daughter reached nineteen years of age, became married, or otherwise became emancipated. In his decision letter, the district judge agreed with the commissioner that $535 per month was the proper level of support. However, the judge ordered the father to make support payments until the daughter reached twenty-one years of age. The judge also ordered the mother to provide medical insurance for the daughter and the father to pay any medical expenses not covered by insurance.

I

The father contends that the district court improperly relied upon Wyo.Stat. § 20-6-306(a) (Supp.1990) ² to increase his support obligation. More specifically, the father attacks § 20-6-306(a) as being violative of both the separation of powers provision found in Article 2, Section 1 and the contract clause found in Article 1, Section 35 of the Wyoming Constitution.

The father argues that § 20-6-306(a) violates the separation of powers provision because it usurps the courts' inherent judicial power to render binding judgments and to determine what constitutes a final judgment. The father points out that all issues determined in a divorce decree are final pursuant to the doctrine of res judicata except in those instances when a party can establish a material or substantial change of circumstances. Parry v. Parry, 766 P.2d 1168, 1170 (Wyo.1989); Manners v. Manners, 706 P.2d 671, 674-75 (Wyo.1985). According to the father, prior to the enactment of § 20-6-306(a), courts, in determining whether a change of circumstances had occurred, considered the child's welfare, the paying parent's ability to pay, the recipient's spending habits, and all other surrounding circumstances; a mere increase in the paying parent's income was not sufficient. Harrington v. Harrington, 660 P.2d 356, 360 (Wyo.1983); Mentock v. Mentock, 638 P.2d 156, 158 (Wyo.1981). The father claims that the legislature's enactment of § 20-6-306(a) altered the prior case law and created a conclusive presumption that modification of support is warranted when application of the support guidelines to an existing support order would result in a twenty percent change in the monthly support level. The father considers this conclusive presumption to be an unconstitutional intrusion into the judiciary's power because the legislature is determining when a support order should be modified and this determination restrains the court's power to define the finality of its own judgments.

We consider the father's claim that § 20-6-306(a) is unconstitutional in light of the principle that "statutes are presumed to be constitutional unless affirmatively shown to be otherwise, and one who would deny the constitutionality of a statute has a heavy burden. The alleged unconstitutionality must be clearly and exactly shown beyond any reasonable doubt." Stephenson v. Mitchell ex rel. Workmen's Compensation Department, 569 P.2d 95, 97 (Wyo.1977).

In this case, the father's argument that the legislature is unconstitutionally usurping the judiciary's power appears to stem from his erroneous assumption that § 20-6-306(a) requires a court to modify a parent's child support obligation upon finding that application of the guidelines would change the support amount by twenty percent or more per month from the amount in the existing order. Rather than requiring courts to modify existing support awards, § 20-6-306(a), in conjunction with §§ 20-6-304(a) and 20-6-302, created a rebuttable presumption that modification would be warranted when application of the guidelines would result in a twenty percent change in the monthly support award. The father interprets the guidelines as creating a rebuttable presumption only when child support is initially awarded, not when a support award is modified. This view is incorrect. Section 20-6-306(a) requires the court to apply § 20-6-304's guidelines when reviewing and adjusting an existing child support order. If application of § 20-6-304's guidelines would change the support amount by twenty percent or more, the court "shall consider there to be a change of circumstances sufficient to justify the modification of the support order." Section 20-6-306(a). The quoted language means that a twenty percent change in support constitutes a sufficient change in circumstances to modify an order; it does not mean that a court is obligated to modify the support order to conform to the guidelines. The guidelines are still only "rebuttably presumed to be the correct amount of child support to be awarded in any proceeding to ... modify ... child support amounts." Section 20-6-302(a). The court may deviate from the presumptively correct support level created by the guidelines when application of the guidelines would be unjust or inappropriate. To determine whether a particular level would be unjust or inappropriate, the court may consider a comprehensive list of factors enumerated in § 20-6-302(b).

Our conclusion that application of the guidelines to an existing support order does not require modification is reinforced by two recent opinions. Hasty v. Hasty, 828 P.2d 94 (Wyo.1992); Roberts v. Roberts, 816 P.2d 1293 (Wyo.1991). In Roberts, we said:

In seeking modification of an existing child support obligation, a party may petition the appropriate court to consider whether a change of circumstances exists sufficient to justify a modification of the child support order. If, upon applying the guidelines of § 20-6-304 to the parties' circumstances at the time of review, the court finds the amount of child support payments would change by twenty percent or more per month from the amount under the existing order, "the court shall consider there to be a change of circumstances sufficient to justify the modification of the support order." Section 20-6-306(a) (emphasis added).

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