Rubeling v. Rubeling

• Court: Wyoming Supreme Court
• Writing for the Court: McINTYRE
• Citation: Rubeling v. Rubeling, 406 P.2d 283 (Wyo. 1965)
• Decision Date: 01 October 1965
• Docket Number: 3426,Nos. 3415,s. 3415
• Parties: Claude A. RUBELING, Appellant (Defendant below), v. Helen B. RUBELING, Appellee (Plaintiff below) (two cases).

Page 283

406 P.2d 283

Claude A. RUBELING, Appellant (Defendant below), v. Helen B. RUBELING, Appellee (Plaintiff below) (two cases).

Nos. 3415, 3426.

Supreme Court of Wyoming.

Oct. 1, 1965.

Walter C. Urbigkit, Jr., Cheyenne, for appellant.

Alfred M. Pence, of Pence & Millett, Laramie, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

The first appeal in this case involves proceedings for modification of a divorce decree with respect to child support.

The original decree contained a provision requiring the husband to pay to the wife $120 per month for support of two minor children, plus a compulsory saving of $30 per month. Upon a succeeding hearing, the original decree was modified by abating the $30-per-month savings requirement for a period of six months.

Five months after the first modification, the husband requested a further modification by a reduction in the $120-per-month support obligation and the $30-per-month savings obligation. The trial court, after trial, denied further modification except that the savings requirement of $30 per month was abated until further order of the court. The husband appeals from the order denying additional modification.

Appellant states that the basic question involved in the appeal is whether absolute proof of change in circumstances is required in a support-modification proceeding--even though it is proved that the support requirements are, for practical purposes, impossible of attainment by the father.

In order to consider abstractly the question presented, we will assume without so deciding that the record in this case shows uncontradicted testimony that the support requirements are, for practical purposes, impossible of attainment. It is fair to say there was indeed a strong showing of the father's inability, on his present earnings, to meet the support requirements of $120 per month, if the earnings of his second wife are not taken into consideration; and appellant claims a second wife's income should not be considered.

The strong showing made on behalf of the father causes us to realize how important the question presented is, and we have not considered it lightly. However, there must come a time in every litigated matter when a decision is final and not subject to relitigation.

As stated in 50 C.J.S. Judgments § 592, p. 11, the doctrine of res judicata is a rule of universal law pervading every wellregulated system of jurisprudence. The doctrine arises through public policy and necessity, it being in the interest of the state that there should be an end to litigation. Also, the doctrine arises from the need to prevent hardship on the individual and to prevent his being vexed twice for the same cause.

Precedent for the application of res judicata to modification proceedings in a divorce case is already established for our court. In Laughton v. Laughton, 71 Wyo. 506, 259 P.2d 1093, 1102-1103, 43 A.L.R.2d 351, it was said the whole theory which admits of a modification is that a condition which affected the interest and welfare of the child and parties either no longer exists or has so materially changed that there is a new situation presented which requires a new adjudication.

The conclusion reached in that case was substantially this: As long as the circumstances and conditions continue unchanged, there is no lawful power or authority in our court, or any other court, to supplant the prior judgment of the trial court by any type of modification. The absolute necessity for principles of res judicata is so strong that we cannot depart from the holding in the Laughton case.

Therefore, taking the basic question involved in this appeal, as stated in appellant's brief, we are compelled to answer that proof of change of circumstances is required in a support-modification proceeding, even though it is proved that the support requirements are, for practical purposes, impossible of attainment by the father.

We are not called upon to prejudge what would or would not, under the circumstances stated in appellant's question, constitute contempt of court if it develops that the father cannot reasonably comply with the last order of the trial court. As far as we know, such a situation has not arisen.

Were Changed Circumstances Proved?

Despite the manner in which appellant has stated what he considers the 'basic question' involved in the appeal to our court, he departs somewhat from his theory that absolute proof of change in circumstances is not necessarily required and suggests there have in fact been changed circumstances.

Unfortunately, we have no record of proceedings in connection with the court's first modification. Although counsel for the husband suggests that the divorced wife has an improved income situation, he admits the record fails to support his contention in that regard, because it does not reflect what her income situation was at the time of the last previous modification.

Likewise, it is not shown that the husband has less income. In fact, appellee suggests his income was nominally increased.

With respect to the argument that the income of a second wife should not be taken into consideration, we can only say if it was taken into consideration at the time of the last previous modification, any objections thereto are lost by failure to...