Tucker v. Tucker

• Citation: 2022 WY 32
• Decision Date: 02 March 2022
• Docket Number: S-21-0181
• Court: Wyoming Supreme Court
• Parties: NICHELLE ANN TUCKER n/k/a NICHELLE ANN JOINER, Appellant (Plaintiff), v. LELON THOMAS TUCKER, Appellee (Defendant).

2022 WY 32

NICHELLE ANN TUCKER n/k/a NICHELLE ANN JOINER, Appellant (Plaintiff),
v.
LELON THOMAS TUCKER, Appellee (Defendant).

No. S-21-0181

Supreme Court of Wyoming

March 2, 2022

This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

Appeal from the District Court of Park County The Honorable William J. Edelman, Judge

Representing Appellant: Alex H. Sitz, III of Meinecke & Sitz, LLC, Cody, Wyoming.

Representing Appellee: Bethia D. Kalenak, Cody, Wyoming.

Before FOX, C.J., and DAVIS ^[*] , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

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BOOMGAARDEN, Justice.

[¶1] Nichelle Joiner (Mother) challenges the district court's order modifying Lelon Tucker's (Father's) child support obligation. She primarily contends the court abused its discretion in calculating Father's income and the amount of time he has custody of their three children. She also contends the court's delay in issuing its order is reversible error and the manner in which it decided child support denied her due process. We reverse and remand for further proceedings.

ISSUE

[¶2] Mother's first issue is dispositive:

Whether the district court abused its discretion in modifying child support.

FACTS

[¶3] Mother and Father married in 2003 and had three children, who were born in 2008, 2010, and 2011. Their November 2013 divorce decree incorporated their Property Settlement & Child Custody Agreement. Pursuant to that agreement, they had joint legal custody, Mother had primary custody, and Father paid no child support.^[1]

[¶4] The procedural history pertaining to subsequent modification of that agreement is torturous and shadowed by inexplicable delay.^[2] In June 2017, the State of Wyoming petitioned to modify child support.^[3] As grounds for modification, the State alleged the existing support order was entered more than six months prior or had not been adjusted within six months and the support required would change by 20 percent or more. See Wyo. Stat. Ann. § 20-2-311(a) (LexisNexis 2021). It further alleged that the parties' net income had substantially changed and their obligation to provide health care required modification.

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See id. The State requested the following relief: adjustment of child support, judgment against the non-custodial parent for accrued child support, an order addressing medical insurance coverage or a cash medical equivalent, and costs.

[¶5] In January 2018, Father petitioned to modify custody and support. He claimed there had been a material change in circumstances since February 2013 in that the children primarily resided with him for the past two years, Mother sold the marital residence where they agreed she would raise the children, and Mother had a series of romantic relationships that negatively impacted her ability to care for the children. Father requested primary custody, ^[4] adjustment of child support and medical insurance, and an order requiring Mother to pay child support retroactive to the date he began exercising primary custody.

[¶6] In February 2018, the court entered a temporary support order on the State's petition. Based on Father's monthly net income of $2, 600, Mother's monthly net income of $2, 845, and the custody arrangement, the court determined that Father's presumptive child support obligation was $832 per month. It reserved the issue of accrued support for July to September 2017 and entered judgment against Father for $2, 496 for October to December 2017. It then ordered Father to pay $832 per month commencing on January 1, 2018.^[5] The temporary order would "remain in effect until further order of the court" because Father's petition to modify custody was pending.^[6]

[¶7] The court held a bench trial on Father's petition in March 2019. Pertinent to this appeal, Father claimed he had custody of the children for the majority of 2016 and 2017. He also briefly addressed child support and his income but custody modification was the central focus of trial.

[¶8] After closing arguments, the court issued an oral ruling and asked Mother's counsel to draft the order. The court found Father failed to establish a material change in circumstances. Though the evidence established Father had primary custody for a major portion of 2016 and 2017, by the time he filed his petition in January 2018, primary custody had reverted back to Mother. In addition, there was no evidence the parties agreed Mother had to remain in the marital residence. Nor was there any evidence her relationships had adversely impacted the children. Furthermore, Father failed to establish it would be in the children's best interests for him to have primary custody.

[¶9] As to child support, the court explained that it would direct the parties to submit, within the next 30 days, a spreadsheet outlining what the appropriate statutory amount

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should be. It also wanted them to address Father's child support obligation and whether he was behind or ahead on his payments.

[¶10] The court did not issue its written order until one year later, in March 2020. Consistent with its oral ruling, the court found Father failed to establish a material change in circumstances or that it would be in the children's best interests for him to have primary custody. It then ordered the parties to update their financial affidavits within 30 days and submit written proposals addressing "the amount of statutory child support that they believe should be ordered since July 1, 2017, the total amount of child support that [Father had paid] since July 1, 2017, and a conclusion of whether [Father] is currently in arrears or should be given credit for any previous child support payments." Over the following months, each party submitted a financial affidavit on the form mandated by Wyo. Stat. Ann. § 20-2-308, as well as a support proposal.

[¶11] Father's July 2020 financial affidavit listed his gross monthly income as $3, 520 and his net monthly income as $2, 019.^[7] He claimed $1, 501 total in mandatory deductions- $320 for federal income tax, $218 for social security tax, $51 for Medicare tax, and $912 for "[c]urrent [c]hild [s]upport [p]aid for [o]ther [c]hildren[.]" His affidavit identified no "other children."

[¶12] Father attached a copy of his 2019 W-2, which reflected that his compensation was $51, 884 and his withholdings were $5, 070 for federal income tax, $3, 216 for social security tax, and $752 for Medicare tax. He also attached paycheck information for several pay periods. The legible documents for pay periods ending on December 31, 2019, February 1, 2020, and February 16, 2020, listed his gross monthly income as $1, 875 and his net monthly income, after taxes and child support, as approximately $1, 134.

[¶13] Mother's June 2020 financial affidavit stated that her gross monthly income was $3, 642 and her net monthly income was $3, 119. She attached copies of her 2018 tax return, 2018 W-2, 2019 tax return, 2019 W-2, and payroll information for March and April 2020.

[¶14] In his child support calculation, Father claimed Mother owed him $906 per month for July to December 2017 ($5, 438 total), noting the court found he had primary custody of the children for that period. He calculated his current support obligation to be $134 because Mother's net monthly income was $3, 119, his was $2, 019, and they had a shared custody arrangement in which he had the children 33.9 percent of the time.^[8] Father claimed that, through June 2020, he had paid $26, 002 toward child support but he had "overpaid

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his child support obligation by $27, 418[.]" Moreover, from July 2020 through the age of majority of his children, he would incur an additional $13, 806 in support obligations. Given his current overpayment and future obligation, Father wanted a $13, 611 refund plus any amount he overpaid while awaiting the court's order. Father requested the court order Mother to immediately reimburse him $14, 898, plus any further overpayment, and order that he pay no future child support.

[¶15] In her calculation, Mother informed the court she did not want to pursue child support for July to September 2017 even though she had primary custody for that period. She then noted the temporary support order was in place from October 2017 to September 2020 and Father appeared to be current on his obligations.

[¶16] Mother proposed Father continue paying $832 per month. Based on his 2019 W-2, she calculated his net monthly income as $3, 570, not $2, 109 as he claimed. Mother also disputed Father's assertion that he has the children 33.9 percent of the time under the 2013 divorce decree, conceded he has the children 25 percent of the time, and maintained that, even under the current version of Wyo. Stat. Ann. § 20-2-304(c), his child support obligation is $830 per month.

[¶17] Furthermore, Mother objected to Father's child support calculation on grounds that he failed to provide his 2018 tax return and W-2 to verify his income. He also deducted $912 from his monthly income for support for other children when he had no other known children to support.

[¶18] In March 2021, Father moved the court to immediately cease his child support payments, noting the court had not yet issued an order on child support. Father explained that his financial circumstances had changed such that he would be entitled to modification but, because the court had not yet entered a child support order, there was no order on which to request modification. By Father's...