Rowan v. Rowan, 89-73

CourtUnited States State Supreme Court of Wyoming
Citation786 P.2d 886
Docket NumberNo. 89-73,89-73
PartiesJames Stephen ROWAN, Appellant (Plaintiff), v. Tammy Beth ROWAN, Appellee (Defendant).
Decision Date08 February 1990

Ronald G. Pretty, Cheyenne, for appellant.

Rhonda Sigrist Woodard, Hanes, Burke & Woodard, P.C., Cheyenne, for appellee.

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

THOMAS, Justice.

The primary question to be resolved in this case is whether it was an abuse of discretion for the trial court to award initial child support of $200 per month for each of two minor children, which amount was to be increased to $250 per month after three months and to $300 per month two months later, in light of the decision of the father to return to college to train for a career different from the one he had been pursuing immediately prior to the divorce. Additional questions are presented with respect to whether the trial court committed an abuse of discretion in refusing to receive into evidence a diary kept by the father; in terminating the appointment of a guardian ad litem; and in defining the visitation rights for the father. The father urged that the amount of child support should have been determined by the amount of his earnings while he was pursuing his education for a different career; the appointment of a guardian ad litem should have been continued even though the children were residing in another state and no meaningful communication was occurring between them and the guardian ad litem; the court should have permitted the introduction into evidence of a diary the father kept during his visitation periods that incorporated comments by the children; and the court erred in apparently preferring the interests of the children over those of the noncustodial parent in setting visitation privileges. We find no abuse of discretion in the Judgment and Decree entered by the trial court, and it is affirmed.

In his statement of the issues, the father sets out these propositions:

"I. Did the court err by its refusal to allow the children their own input into the divorce. Should the court have terminated the employment of the Guardian-Ad-Litem such as to deny the children their due process right and was the court in error for not allowing the visitation diary of the plaintiff to be introduced such as to allow the court some input as to the children's feelings.

"II. In the determination of visitation rights for the noncustodial parent: Should the court give preference to the interests of the children or of the non-custodial parent.

"III. Was the child support level set by the court unequitable and too high given the Appellant's income at the present time. Should the court have set the child support level at the Appellant's income that he had prior to being terminated from his employment or at his present income."

In her brief, as appellee, the mother states these to be the issues:

"I. Whether the trial court abused its discretion in finding that a guardian ad litem was not necessary in order to protect the best interests of the minor children of the parties in this case.

"II. Whether the visitation schedule ordered by the district court was within its discretion.

"III. Whether the trial court abused its discretion by ordering appellant to pay the child support set forth in the judgment and decree.

"IV. Whether appellant should be ordered to pay damages and attorney's fees for filing an appeal without reasonable cause for appeal."

This divorce action was filed on October 19, 1987. It had its actual inception when the wife left the marital home, taking the children with her. The principal focus of the conflict was over who would have custody of the children, the mother or the father. While the case was pending, the father was allowed to have the children for a period of visitation. When the visit occurred, he assumed custody of the children and moved in with his parents who had frequently cared for the children while both the mother and father worked. Eventually, the district court placed temporary custody of the children with the mother pending the entry of the final decree of divorce.

On March 9, 1988, pursuant to stipulation of the parties, a guardian ad litem was appointed to represent the children. Although the record is not entirely clear as to why a guardian ad litem was appointed, we understand that the husband sought the appointment of, and was willing to pay for, the services of the guardian ad litem because he wanted the children to have some input into whether their custody should be placed with the mother or the father. We note that the children were three years old and eight months old at the time the divorce was commenced. The record does not demonstrate what contribution, if any, the guardian ad litem made in these proceedings, but it does show he requested to be relieved of his duties. His request was granted on June 14, 1988.

We first address the issue relating to the award of child support payments from the father to the mother. The pertinent provisions of the decree are:

"[THE COURT] FINDS as follows:

"4. [Father] has a duty to provide toward the support of the minor children. [Father] has a bachelor's degree and master's degree in business administration and management, and is reasonably capable of providing toward the children's support in an amount which begins at $200 per month per child and increases to $300 per month per child on May 1, 1989;

"5. Although [father] was terminated from his employment in July, 1988, his unemployment from July, 1988, until shortly before November 8, 1988, was due to his choice not to seek employment. [Father's] current level of employment is due to his choosing to work part-time and pursue a Ph.D. rather than seek a job for which he is presently qualified;

* * * * * *

"WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED;

"4. Commencing December 1, 1988, and continuing on the first day of each month thereafter, the [father] shall pay to [mother] through the Clerk of the Court of Laramie County District Court in Cheyenne, Wyoming, the sum of Two Hundred Dollars ($200) per month per child for the support of [daughter] and [son] until March 1, 1989, at which time he shall pay the sum of Two Hundred Fifty Dollars ($250) per month per child on the first day of each month until May 1, 1989, when said payments shall become Three Hundred Dollars ($300) per month per child and shall continue on the first day of each month thereafter until the children reach the age of nineteen years or become emancipated."

The father urges that the amount of child support should have been determined by the amount of his earnings while he was pursuing his education to prepare and qualify him for a different career. He contends, as he did in the trial court, that he was unable to make such support payments because of his low earnings at the time the divorce was granted and because of his decision to return to college to train for a different career than the one he had been pursuing immediately prior to the divorce. He vigorously asserts that the district court abused its discretion in making its determination concerning child support payments.

The decision of the district court to set child support at $300 per month per child was clearly within its discretion. We have held previously that voluntary assumption of obligations which interfere with a parent's ability to pay child support will not sustain a petition to have the child support obligation changed. See Booker v. Booker, 626 P.2d 561 (Wyo.1981); Nuspl v. Nuspl, 717 P.2d 341 (Wyo.1986). The district court's decision to set child support at a level consistent with the father's earning capacity, rather than with his desire not to work full-time and, instead, pursue a new career goal, is not an abuse of discretion. As we noted in Nuspl, ascertainment of the compromise between the obligations of a parent to pay child support, and the voluntary assumption of obligations by that parent which interfere with the former obligation, rests in the sound discretion of the trial court after its consideration of all the proper and relevant circumstances. Here, the district court took into account all relevant and proper circumstances, and we perceive no abuse of discretion.

The father's concern is that he is charged with making child support payments that are excessive in light of his income while attending college to qualify him for an alternative career. In this proceeding, the issue is the propriety of the amount, not the collectibility, of the child support payments. As we have noted, the father chose to pursue a different career rather than continue the employment for which he already was qualified. In light of the facts and circumstances, there is no abuse of discretion, or even unfairness, in providing for an adequate amount for child support.

The principal focus of appellant's issue relating to the guardian ad litem is the district court's decision to discontinue the use of the...

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