Rose v. Rose, 4810

• Decision Date: 23 March 1978
• Docket Number: No. 4810,4810
• Citation: 576 P.2d 458
• Parties: Francis E. ROSE, Appellant (Plaintiff below), v. Patricia K. ROSE, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 458

576 P.2d 458

Francis E. ROSE, Appellant (Plaintiff below), v. Patricia K. ROSE, Appellee (Defendant below).

No. 4810.

Supreme Court of Wyoming.

March 23, 1978.

Ernest W. Halle, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellant.

Philip P. Whynott, DeHerrera & Whynott, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J., McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

PER CURIAM.

By his appeal herein, appellant-plaintiff ¹ challenges an order of the Laramie County District Court awarding to appellee-defendant, in conjunction with a grant of custody, child support payments in the amount of $75.00 per month. Plaintiff asserts that inasmuch as a request for child support was not originally pleaded in his divorced wife's petition requesting a change in child custody, he was not prepared to defend such a claim, and the district court's allowance of an amendment to conform pleadings to the evidence on support was in error. Rule 15(b) W.R.C.P. Plaintiff's point is not well taken. The decision to allow amendment to pleadings is vested within the sound discretion of the district court, when justice requires, and therefore subject to reversal on appeal only for an abuse of that discretion. Breazeale v. Radich, Wyo.1972, 500 P.2d 74. In determining the propriety of an amendment subject to this standard of review, the basic guideline to be followed is whether or not the allowance of the amendment prejudiced the adverse party. Beaudoin v. Taylor, Wyo.1972, 492 P.2d 966.

Under the facts before us, not only has plaintiff totally failed to point out specifically how he was prejudiced, we fail to see how such a showing could be made. At the hearing, plaintiff was questioned by defendant's counsel, without objection, rather extensively relative to his earning capabilities and abilities. It was only when counsel for defendant began to examine the defendant, regarding a need for child support, that respondent objected and requested a continuance rather than allow the pleadings to be amended. How, under these circumstances, plaintiff could have been prejudiced by the pleadings amendment he has not made clear, leaving the presence of prejudice open to speculation and guess, something this court will not do. We note from the record that a child of the marriage, the subject of this litigation, Daniel James Rose, age 14, was separately represented by his own counsel. The child's counsel participated very little, his only concern being that the welfare of the child would not be neglected. The child had been placed in his interest in a foster home pending the outcome of the custody and support hearing.

At the time of the hearing on November 16, 1976, and entry of the district court's order on January 20, 1977, there was in effect, § 20-61, W.S.1957: ²

"The court, in granting a divorce, and also upon pronouncing a decree of nullity of a marriage, may make such disposition of, and provision for, the children as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children; and the court may from time to time afterward on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of such children, as the circumstances of the parents and the benefit of the children shall require." (Emphasis added.)

In construing that section, this court in Strahan v. Strahan, Wyo.1965, 400 P.2d 542, aligned it with Rule 15(b) and held that the issue of modification under some circumstances may be "treated in all respects" ³ as if requested or petitioned for by a parent. In Strahan, there was no petition for modification of any sort filed, only an application by the wife to punish the husband for contempt. Because of changed circumstances, the trial judge proceeded to alter the decree by reducing child support and changing the arrangement for custody. The obligation of support bestowed by § 20-61 (now § 20-2-113(a), W.S.1977), impliedly becomes a part of every divorce decree involving the welfare of the children of a marriage and the trial court has a continuing jurisdiction to modify. In Strahan, this court spoke approvingly of procedures whereby a court may, on its own motion, modify the decree if the welfare of children of the marriage requires it. ⁴ Once the parties are before the court, there would seem to be a needless circuity of action to send them away only to have them back under another procedure. The controlling question is the welfare of the children, Stirrett v. Stirrett, 1926, 35 Wyo. 206, 248 P....