Ready v. Ready, 02-149.

• Decision Date: 26 September 2003
• Docket Number: No. 02-149.,02-149.
• Citation: 76 P.3d 836,2003 WY 121
• Parties: K.C. James READY, Appellant (Defendant), v. Janelle Louanne READY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

76 P.3d 836

2003 WY 121

K.C. James READY, Appellant (Defendant), v. Janelle Louanne READY, Appellee (Plaintiff).

No. 02-149.

Supreme Court of Wyoming.

September 26, 2003.

Representing Appellant: Wendy Press Sweeny, Worland, Wyoming.

Representing Appellee: Chris Edwards of Simpson, Kepler & Edwards, LLC, Cody, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] A non-custodial father moved to modify the child support and alimony provisions of his 1998 divorce settlement and decree. The district court did reduce the father's child support obligation, but still ordered an amount higher than the presumptive statutory amount. The court declined to terminate the father's alimony obligation. The father appeals the alimony and child support orders as well as the court's refusal to make the child support modification retroactive to the date the father filed his motion. Finding no abuse of discretion by the trial court, we affirm.

ISSUES

[¶ 2] K.C. James Ready, the father and appellant, presents the following issues:

I. Did the trial court err in its use of the tax returns in ascertaining child support?

II. Did the trial court err in deviating from the child support guidelines and increasing the child support due and owing by the Appellant?

III. Did the trial court err in refusing to retroactively apply the reduction in child support to the date of the petition being served on the Appellee?

IV. Did the trial court err in refusing and failing to modify the decree of divorce as to the payment of alimony?

[¶ 3] Janelle Louanne Zinn, mother and appellee, states the issue as whether the trial court abused its discretion in any of the four areas presented by the father.

FACTS

[¶ 4] K.C. James Ready (father) married Janelle Louanne Ready, now known as Janelle Louanne Zinn (mother) in 1981. They divorced in 1998. The divorce decree incorporated the parties' settlement agreement and awarded custody of their three children—then ages 15, 13 and 11—to their mother. The father was granted visitation and ordered to pay child support of $709 per month, plus $200 per month alimony until the youngest child graduates from high school in June of 2005.

[¶ 5] Before the divorce, the father was employed in Cody, Wyoming, as a branch manager for a grocery store chain. He earned $38,000-$50,000 per year with bonuses. The mother, who has a bachelor's degree in elementary education and an associate's degree in music, was self-employed as a daycare provider and piano teacher. She earned less than $12,000 in the year before the divorce. As part of the divorce settlement, the mother was awarded the family home in Cody, while the father moved to his family's farm in Thermopolis, Wyoming.

[¶ 6] Both parties have changed their employment since the divorce. The father became a grocery store branch manager in Worland, but was terminated at the end of 1998 after he was hurt in a fall from a horse. The store has since closed, and the father has not sought work again in that occupation. At the time of the modification hearing he was an apprentice electrician in training to become a journeyman electrician. He also worked odd jobs and was renovating a home for re-sale. The mother took a job in a doctors' office immediately after the divorce decree in September 1998 and was earning $10 per hour, with insurance benefits, in 2001. Just before the modification hearing, she went to work for the State of Wyoming at $13.50 per hour with no fringe benefits. She remarried in July 2001.

[¶ 7] The parties' oldest son turned 18 in 2001 and is attending college. His mother testified that she would have to provide him with approximately $125 per month to assist with his college expenses. She also spends one to two hours per day tutoring the second child, who is hearing impaired.

[¶ 8] Upon the father's motion for modification, the district court terminated the father's child support obligation for the oldest son. The court then calculated the presumptive level of support for the two remaining minor children using the parties' 2000 income as the most representative of their current earning ability. The court determined the father's 2000 earnings were approximately $19,500, and that his $2,036 refund of 1999 taxes received in 2000 should also be counted as income because it represented over-withholding. His monthly average income was therefore $1,800. The court found the mother's income to be $1,508 per month and determined that her tax refund should not be counted because it was due to her charitable contributions.

[¶ 9] Using those income figures, the district court determined the presumptive level of support under the governing statute to be $470 but also determined that deviation upward to $635 was appropriate based upon six other factors, including:

• the father's choice to reside in an economically depressed area where work in his profession is unavailable;

• the special healthcare and educational needs of the parties' second child;

• the mother's contribution of tutoring services for their hearing-impaired son;

• the father's failure to exercise his right to overnight visitation with his daughter;

• the mother's cash assistance to the oldest son in college;

• the father's expectation of eventual profit from the house he is renovating.

[¶ 10] The court also declined to terminate the father's $200 per month alimony obligation because it was part of a comprehensive property and child custody agreement, because the alimony is to terminate on a specific date, and because the agreement "was also apparently geared to a consideration of the needs of the children of the parties."

STANDARD OF REVIEW

[¶ 11] Our role in reviewing petitions to modify child support is well established:

There are few rules more firmly established in our jurisprudence than the proposition that disposition of marital property, calculation of income for child support purposes, and the granting of alimony are committed to the sound discretion of the district court. Johnson v. Johnson, 11 P.3d 948, 950 (Wyo.2000). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Id.; Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). We must ask ourselves whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. Johnson, 11 P.3d at 950. In accomplishing our review, we consider only the evidence in favor of the successful party, ignore the evidence of the unsuccessful party, and grant to the successful party every reasonable inference that can be drawn from the record. Id.

Belless v. Belless, 2001 WY 41, ¶ 6, 21 P.3d 749, ¶ 6 (Wyo.2001).

The party seeking modification must establish there has been a material and substantial change in circumstances which outweighs the interest of society in applying the doctrine of res judicata. Pauling v. Pauling, 837 P.2d 1073 (Wyo.1992)

; Crawford v. Crawford, 828 P.2d 1192 (Wyo. 1992); Dorr v. Newman, 785 P.2d 1172 (Wyo.1990); Mentock v. Mentock, 638 P.2d 156 (Wyo.1981). The trial court is vested with discretion to modify the provisions of the divorce decree and, absent a grave abuse of that discretion, we will not disturb its decision. Parry v. Parry, 766 P.2d 1168 (Wyo.1989); Manners v. Manners, 706 P.2d 671 (Wyo.1985). The standard we apply in review of cases asserting abuse of discretion as an issue is whether the trial court reasonably could have concluded as it did. Rude v. State, 851 P.2d 20 (Wyo.1993), and Parry (both citing Martinez v. State, 611 P.2d 831 (Wyo.1980)).

Pasenelli v. Pasenelli, 2002 WY 159, ¶ 9, 57 P.3d 324, ¶ 9 (Wyo.2002) (quoting Jones v. Jones, 858 P.2d 289, 291 (Wyo.1993)).

This policy manifests a balance between the doctrine of finality of judgments which is supported by the doctrine of res judicata and the statutes providing for modification of the provisions of a decree relating to child custody, support, and alimony. The trial court is charged with resolving that tension, and it must do so in the exercise of discretion. The discretion afforded the trial judge is encompassed in Wyo. Stat. § 20-6-302(b). The discretion is guided by a list of thirteen factors, but the final one, "[o]ther factors deemed relevant by the court * * *," is a classic acknowledgment of judicial discretion.

The child support guidelines identify a base from which the judge must invoke the exercise of discretion. In the absence of an agreement with respect to child support, the guidelines will have a more significant controlling impact. When an agreement as to child support is involved, however, more weight may be given to the agreement. Child support agreements entered into by the parties are favored by the courts. Beard v. Beard, 368 P.2d 953 (Wyo.1962).

Smith v. Smith, 895 P.2d 37, 41 (Wyo.1995).

DISCUSSION

[¶ 12] Child support is calculated pursuant to statute. The first step is to calculate the parents' current monthly net income for application to the presumptive child support tables. Wyo. Stat. Ann. § 20-2-304 (LexisNexis 2003). "Income" and "net income" are defined in Wyo. Stat. Ann. § 20-2-303(a) (LexisNexis 2003) as follows:

(ii) "Income" means any form of payment or return in money or in kind to an individual, regardless of source. Income includes, but is not limited to wages, earnings, salary, commission, compensation as an independent contractor, temporary total disability, permanent partial disability and permanent total disability worker's compensation payments, unemployment compensation, disability, annuity and retirement benefits, and any other payments made by any payor, but shall not include any earnings derived from overtime work unless the court, after considering all overtime earnings derived in the preceding twenty-four (24) month

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