Smith v. Smith

• Decision Date: 25 April 1995
• Docket Number: No. 93-264,93-264
• Citation: 895 P.2d 37
• Parties: Joseph Morton SMITH, III, Appellant (Defendant/Petitioner), v. Suzanne Elizabeth Leland SMITH, n/k/a Suzanne Lym, Appellee (Plaintiff/Respondent).
• Court: Wyoming Supreme Court

Page 37

895 P.2d 37

Joseph Morton SMITH, III, Appellant (Defendant/Petitioner), v. Suzanne Elizabeth Leland SMITH, n/k/a Suzanne Lym, Appellee (Plaintiff/Respondent).

No. 93-264.

Supreme Court of Wyoming.

April 25, 1995.

John A. Thomas, Evanston, for appellant.

Roger Cowan of Harris, Morton & Cowan, P.C., Evanston, for appellee.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* MACY and TAYLOR, JJ.

THOMAS, Justice.

The primary issue to be resolved in this case is whether the trial court abused its discretion in not following the child support guidelines in WYO.STAT. § 20-6-304 (Supp.1993), in an instance in which the parties had agreed upon the amount of child support. The trial court found good cause to deviate from the presumptive amounts established by the statutory formula, and it did not modify the amount of child support in response to the father's petition. We hold the failure to invoke the statutory guidelines does not demonstrate an abuse of discretion by the trial court and, when the amount of child support is set by agreement, the party seeking modification must demonstrate a material change in circumstances other than a twenty percent departure from the statutory guidelines. We affirm the Order Upon Defendant's Petition for Enforcement and Modification of Decree of Divorce and Order Modifying Decree of Divorce entered in the trial court.

Joseph Morton Smith, III (father), sets forth a single issue in the Brief of Appellant:

Whether the district court abused its discretion by refusing to reduce the present monthly child support amount of $3,000.00, which is more than three times greater than the presumptive guideline amount of $914.96.

Suzanne Elizabeth Leland Smith, n/k/a Suzanne Lym (mother), states two issues in her Brief of Appellee, as follows:

I. Whether modification of child support is mandatory if a 20% change in child support is shown pursuant to Wyoming Statute § 20-6-306 (1993, Cum.Supp.).

II. Whether failure to reduce child support to the amount set out in the child support guidelines in Wyoming Statute § 20-6-304(a) was an abuse of discretion.

The father's Reply Brief of Appellant refers to a third issue raised by the mother, the standard of review, but that is not really debated by the parties.

The father and the mother were divorced in 1988. At that time, their two children were seven and four. The decree of divorce was based upon a stipulation providing for sole legal custody of the children in the mother. The father agreed to pay $5,000 per month child support and, in addition, he was to deposit $200 each month into a savings account for the children. He further was required to maintain the children's health insurance and pay their medical, dental, and optometric expenses not covered by insurance. There was no provision for alimony, but the father was required to maintain health insurance for the mother until she became fully employed.

In 1990, the father sought modification of the decree to provide for more liberal visitation, an abatement of child support as allowed by statute, and a reduction in child support. During the trial held on that petition, the parties arrived at a settlement, which was approved by the court in an Order Modifying Divorce Decree. The support payments were reduced to $3,000 per month; the statutory abatement was allowed; the medical expenses were adjusted; and the father's visitation rights were enhanced.

A little more than two years later, the father presented a new petition for modification of child support. His justification was the relocation of his practice in general surgery from Evanston to Santa Fe, New Mexico. That choice was made because of the stress of practicing surgery as the only general surgeon in Evanston. The father had experienced that circumstance once before, and he did not want to repeat it.

At the time of the first modification, the father had a net monthly income of $6,500 out of which he was paying $5,000 in child support. When the hearing was held on the later petition for modification, a certified public accountant testified the father's net monthly income from the Santa Fe practice was $3,968. That testimony was based upon the accountant's evaluation of the practice the father had purchased in Santa Fe. The mother's net monthly income was $1,400 at the time of the first modification, and it was a few dollars less at the time of the hearing on the second petition.

Pursuant to WYO.STAT. § 20-6-304(a)(ii) (1994), the presumptive child support for the father would be $914.96, which is more than the twenty percent change contemplated by WYO.STAT. § 20-6-306(a) (1994). In addition, the father points out he has remarried and has a new child born of the second marriage. He presented evidence that he has been turned down for a home mortgage loan because of the ratio between his child support obligation and his income.

The trial court refused to reduce the amount of child support from the $3,000 per month agreed upon by the parties in 1990. In support of its decision, the trial court made these pertinent findings:

2. Prior to Defendant/Petitioner's Petition filed herein, Defendant/Petitioner had twice before, by Stipulation and Agreement, settled upon and agreed to an amount to be paid for child support.

3. At the time of the divorce, July 11, 1988, the parties agreed to child support in the sum of $5,000.00 per month. Said $5,000.00 per month did not conform to the child support guidelines existing at that time.

4. The child support required by the original Decree of Divorce herein was modified and reduced in January, 1991, again by agreement and stipulation of the parties, to $3,000.00 per month. Said $3,000.00 per month was substantially in excess of the guidelines in effect at that time, as set out in Wyoming Statute § 20-6-304(a) (1990, Cum.Supp.). Said stipulation and agreement for child support and visitation was entered into by the parties knowingly and voluntarily, with consideration, and said stipulation and agreement therefore became a contract between the parties. The Court approved and ratified said contract in its Order dated January 8, 1991.

5. Defendant, by his Petition for Enforcement and Modification of Decree of Divorce and Order Modifying Decree of Divorce, now seeks to rescind his contractual agreement. There is no basis for recision. The contract is not unconscionable, there was no mutual mistake of fact, nor material or substantial change in circumstance which would render enforcement of the contract unfair, unjust or unconscionable. Further, Defendant's financial condition is substantially the same on the date hereof, as it was at the time he agreed to his current support obligation.

6. Since entry of the Order Modifying Decree of Divorce, in January, 1991, wherein the child support was reduced to and established at $3,000.00 per month, Defendant/Petitioner has moved from Evanston, Wyoming to Santa Fe, New Mexico, and has had another child with his present wife. All of these events are voluntary on the part of Defendant/Petitioner and do not constitute a material change of circumstances.

7. Child support currently paid by Defendant/Petitioner in fact deviates by 20% from the presumptive child support set out in the guidelines set out in Wyoming Statute § 20-6-304(a) (1993, Cum.Supp.), however, such deviation does not establish sufficient cause to modify the existing support order herein.

8. There is good cause for the Court to deviate from the presumptive guideline amount set out in Wyoming Statute § 20-6-304(a) (1993, Cum.Supp.). Those reasons are that the parties agreed upon the amount of child support; none of the parties' prior agreements for child support were based upon guidelines in effect at the time of the agreements; Plaintiff/Respondent, at the time of the divorce waived alimony and received a disproportionately low amount of property settlement; the needs of the children require child support in excess of the presumptive amounts; the Defendant/Petitioner has the ability to pay the child support currently ordered; and any reduction in the income of Defendant/Petitioner is a result of his voluntary acts.

There is no question the statutory scheme justifies a departure from the presumptive child support provided by law. WYO.STAT. § 20-6-302(b) (1994) provides:

(b) A court may deviate from the presumptive child support established by W.S. 20-6-304 upon a specific finding that the application of the presumptive child support would be unjust or inappropriate in that particular case. In any case where the court has deviated from the presumptive child support, the reasons therefor shall be specifically set forth fully in the order or decree. In determining whether to deviate from the presumptive child support established by W.S. 20-6-304, the court shall consider the following factors:

(i) The age of the child;

(ii) The cost of necessary child day care;

(iii) Any special health care and educational needs of the child;

(iv) The responsibility of either parent for the support of other children, whether court ordered or otherwise;

(v) The value of services contributed by either parent;

(vi) Any expenses reasonably related to the mother's pregnancy and confinement for that child, if the parents were never married or if the parents were divorced prior to the birth of the child;

(vii) The cost of transportation of the child to and from visitation;

(viii) The ability of either or both parents to furnish health, dental and vision insurance through employment benefits;

(ix) The amount of time the child spends with each parent;

(x) Any other necessary expenses for the benefit of the child;

(xi) Whether either parent is voluntarily unemployed or underemployed. In such case the child support shall be computed based upon the potential earning capacity (imputed income) of the unemployed or underemployed parent. In making that determination the court shall consider:

(A) Prior employment...