Roberts v. Roberts

• Court: Wyoming Supreme Court
• Writing for the Court: Before URBIGKIT, C.J., ROONEY; HANSCUM
• Citation: Roberts v. Roberts, 816 P.2d 1293 (Wyo. 1991)
• Decision Date: 10 September 1991
• Docket Number: 90-293,Nos. 90-292,s. 90-292
• Parties: Thomas David ROBERTS, Appellant (Plaintiff), v. Carol A. ROBERTS, Appellee (Defendant). Carol A. ROBERTS, Appellant (Defendant), v. Thomas David ROBERTS, Appellee (Plaintiff).

Page 1293

816 P.2d 1293

Thomas David ROBERTS, Appellant (Plaintiff), v. Carol A. ROBERTS, Appellee (Defendant).

Carol A. ROBERTS, Appellant (Defendant), v. Thomas David ROBERTS, Appellee (Plaintiff).

Nos. 90-292, 90-293.

Supreme Court of Wyoming.

Sept. 10, 1991.

Thomas David Roberts, pro se.

Robert W. Brown of Lonabaugh and Riggs, Sheridan, for Carol A. Roberts.

Before URBIGKIT, C.J., ROONEY, J. (ret.), and GRANT, HANSCUM and LANGDON, District Judges.

OPINION

HANSCUM, District Judge.

In this appeal, we are called to pass upon the correctness of an application of the child support guidelines in a modification-of-divorce-decree context, not upon the efficacy of the guidelines in the establishment of an initial child support award. Rather oxymoronically, the guidelines, though styled "guidelines," create a rebuttable presumption. Deviation from this presumption, utilizing certain factors, is permitted. The district court deviated from the guidelines by ordering the husband to pay a higher amount in child support payments than he would have been required to pay under the guidelines, taking into consideration other relevant factors including the comparative incomes of the parties and the general import of the parties' original agreement. The district court denied the husband's request to modify the original decree to give mid-week visitations to him. The husband appeals these determinations, claiming the district court abused its discretion. The district court also deleted an escalator provision from the original decree and declined to award attorney's fees to the wife, from which determinations the wife filed a cross-appeal.

Finding that the child support guidelines statutes were correctly applied and that the district court did not abuse its discretion, we affirm.

Facts

Thomas David Roberts (the husband) and Carol A. Roberts (the wife) were divorced in June 1986. The divorce decree incorporated the provisions of the child custody and property settlement agreement which had been executed by the parties. The husband agreed and the decree ordered him to make child support payments for the parties' two minor children. Relative to this issue on appeal, the pertinent portion of the decree reads:

[The husband] shall pay to [the wife] each and every month for the support of the parties' minor children $312.50 per child, or a total of $625.00 per month commencing June 1, 1986. On the first day of May, 1987, the child support shall be increased by $25.00 per month per child, or a total of $50.00 monthly, and the child support shall continue to be increased by $25.00 per child per month on the first day of May in each year until [the husband] is paying a total of $1,025.00 per month, at which time the child support shall remain at that figure and shall be payable each and every month until the children reach their legal age, become earlier self-supporting or otherwise emancipated, or until further order of the Court. However, during the month of July in each year no child support shall be payable by [the husband] to [the wife].

On July 5, 1990, the husband filed a petition to modify and enforce the divorce decree. The petition asserted that, under the guidelines and definitions of recently enacted Wyo.Stat. §§ 20-6-301 to -306 (Supp.1990), the husband should be bound to pay only $613.38 per month in child support payments. By virtue of an application of the escalation provision in the divorce decree, the husband was paying $825 per month at the time he filed the petition; thus, a change of circumstances was alleged to require an adjustment of the child support payments downward to the guidelines level. The petition also sought further modification of the decree by providing for a mid-week visitation between the husband and his children.

On July 20, 1990, the wife filed a response to the husband's petition to modify the divorce decree which resisted the changes sought by the husband, alleging that the husband's salary had actually increased since the decree and that the applicable provisions under §§ 20-6-301 to -306 did not indicate that a reduction in the husband's child support obligations would be appropriate. The wife asserted that, as the primary custodial parent, it was within her discretion to deny additional visitation periods outside of the decree. The wife also requested an award of attorney's fees.

A hearing on the petition to modify the divorce decree was held on September 14, 1990. The evidence revealed that both parties were gainfully employed at the time the decree was entered. The husband's 1986 "adjusted gross income" was $29,022. No evidence was presented to the court to enable computation of the husband's "net income" during the year 1986. In 1990, the husband's "net income" (after deducting for personal income taxes, social security and mandatory retirement contributions, dependent health care insurance, and other court-ordered child support obligations per § 20-6-301(a)(ii)) was $2,122.92 per month ($25,475.04 per annum). Testimony at the hearing established that the wife's 1990 "net income" was approximately $1,800 per month (approximately $21,600 per annum).

After hearing all the evidence presented upon the petition, the district court issued an order modifying the decree to vacate further escalation of the husband's child support obligations and to maintain the total amount of the child support payments at $825 per month, unless under statutory guidelines there would be cause for the husband to be required to pay more than that amount. The court made a finding that no evidence was presented to demonstrate the husband's change of circumstances warranted a reduction in his child support obligations. In fact, the court found that the evidence indicated the husband was earning more at the time of the hearing than he was earning at the time the divorce decree was entered. The court found further that it was reasonable, with regard to visitation, to give discretion to the primary custodial parent and to not modify the decree to establish mid-week visitations. The district court denied the award of attorney's fees.

The husband appeals from those findings denying a reduction in the amount of his child support obligations and a modification of the decree to establish mid-week visitations. The wife cross-appeals from those portions of the court's decision which eliminate the child support payment escalation clause and which deny attorney's fees.

I.

The district court did not abuse its discretion when it determined whether there was a substantial or material change of circumstances to justify modifying the child support obligations set out in the existing divorce decree.

Section 20-6-304(a) establishes guidelines to be used in determining the amount of a child support obligation on the basis of the obligor's monthly net income and the number of children to be supported. 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).

However, applying the guidelines established by § 20-6-304 when a party is seeking to modify an existing child support order, a court may deviate from the guidelines if it issues a finding on the record that application of the guidelines would be unjust or inappropriate in that particular case. Section 20-6-302(b). We agree with the district court's finding:

Child support agreements made prior to the enactment of the statutory child support guidelines (§ 20-6-301 through § 20-6-306 W.S.) do not necessarily have to be changed simply because of the enactment of the statutory guidelines.

In making its determination as to whether to deviate from the child support guidelines, the court may consider the list of factors and the parties' original agreement and weigh their relevance.

This Court has recognized that, under certain circumstances, modifications of divorce decrees are necessary. Mentock v. Mentock, 638 P.2d 156 (Wyo.1981). However, for a modification to be warranted, it must be established that there has been a material or substantial change in circumstances which outweighs society's interest in applying the doctrine of res judicata. Parry v. Parry, 766 P.2d 1168 (Wyo.1989); Nuspl v. Nuspl, 717 P.2d 341 (Wyo.1986); Broyles v. Broyles, 711 P.2d 1119 (Wyo.1985); Manners v. Manners, 706 P.2d 671 (Wyo.1985); Mentock, 638 P.2d 156. In Mentock, 638 P.2d at 158, this Court held that the petitioning party, in order to be entitled to prevail in a modification-of-child-support action, needed to establish that the parties' circumstances had so changed as to warrant disregarding the finality of the existing order. Thus, the party seeking the modification has the burden of proving that a substantial or material change has occurred subsequent to the existing decree. Nuspl, 717 P.2d at 345; Manners, 706 P.2d at 675. In this case, the husband (the party who initiated the modification proceedings) sought to meet his burden to demonstrate the existence of a material change in circumstances by utilizing §§ 20-6-304 and 20-6-306(a). Evidence at the modification hearing showed a change in the husband's circumstances which would result in a change of the child support amount in excess of twenty percent, which the district court duly noted in its order modifying the divorce decree.

The district court, in deviating from the strict application of the child support guidelines set out in § 20-6-304, used its...