Walker v. Walker

• Decision Date: 17 October 2013
• Docket Number: No. S–13–0063.,S–13–0063.
• Citation: 311 P.3d 170
• Parties: Jerry D. WALKER, Appellant (Defendant), v. Jaci S. WALKER, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

311 P.3d 170

Jerry D. WALKER, Appellant (Defendant),

v.Jaci S. WALKER, Appellee (Plaintiff).

No. S–13–0063.

Supreme Court of Wyoming.

Oct. 17, 2013.

Representing Appellant: Richard “Zak” Szekely, Casper, Wyoming.

Representing Appellee: No appearance.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] Appellant Jerry D. Walker (Father) filed a motion seeking primary residential custody ¹ of his daughter. Appellee Jaci S. Walker (Mother), who was the primary residential custodian under the parties' divorce decree, opposed a change of custody and sought an increase in child support based on a claimed increase in Father's income. The district court denied Father's motion for a change of custody, finding no material change in circumstances. However, it found that Mother had proven that she was entitled to an increase in child support. It also awarded her a judgment for Father's share of the child's medical and other expenses she had paid.

[¶ 2] We find that the amount of child support awarded is not correct under Wyoming's statutory child support tables, and we therefore reverse and remand for entry of a proper award. Father has provided us with no record indicating that the district judge erred in any other respect, and so we affirm on all other issues.

ISSUES

[¶ 3] 1. Did the district court err in finding that Mother was entitled to an increase in child support?

2. Did the district court have authority to award a judgment in any amount?

3. Did the district court err in failing to credit Father with payments he had made if it did have authority to award a judgment?

4. Did the district court abuse its discretion in denying Father's motion for a change of custody because it did not consider the parties' minor child's best interests or preferences?

FACTS

[¶ 4] The parties had a contested divorce which went to trial. By the terms of the decree entered on January 13, 2006, Mother received primary residential custody of the parties' only child, MLW, who was born in 1999. The decree noted that Father had a history of drug use, but that he was making good efforts to recover from addiction, and the court therefore awarded visitation in accordance with the First Judicial District's Standard Visitation Order. ²

[¶ 5] In the original decree, the district court found that Father earned $2,700.00 per month and that Mother earned $2,076.86 per month, and it therefore required Father to pay $527.85 in monthly child support, the presumptive amount due under the child support tables contained in Wyo. Stat. Ann. § 20–2–304. Father was also ordered to reimburse Mother for $2,500.00 she had paid toward his child support obligation for a child not born of the marriage between these parties.

[¶ 6] On January 21, 2010, Father filed a petition asking the district court to make him MLW's primary custodian, to grant Mother standard visitation (the same visitation rights he had up to that point), and to modify child support to reflect this change. He claimed that he had turned his life around, remarried, had another child, had been involved in a church in a variety of ways, and had generally exercised visitation with MLW to the greatest extent possible given the fact that he lives in Casper and Mother lives in Cheyenne. He also claimed that Mother kept cats to which MLW was allergic, that she did a poor job of taking care of the child, that the child was often left alone, that her grades were slipping, and that Mother had failed to properly “foster [MLW's] religion.” He also claimed that Mother had interfered with his visitation, had failed to advise him of MLW's medical issues, and had otherwise failed to act in the child's best interest. He contended that these facts were a material change in circumstances justifying reconsideration of the custody provisions of the decree, and that he should be the primary custodian because that would be in the child's best interest.

[¶ 7] Mother denied the negative allegations Father made about her in his petition. She also filed a motion to increase the child support she received, claiming that Father had had an increase in his earnings, and that he should be required to pay more support.

[¶ 8] In April of 2011, Mother requested that the court interview MLW in camera to determine her preference as to which parent would be her primary custodian, to which Father agreed. The interview was conducted on April 18, 2011, and the transcript of that interview is in the record. MLW was eleven at the time, and the transcript indicates that she was articulate and composed, and quite intelligent. She indicated that she was comfortable with either parent, but preferred to live with Father. She also indicated that she expressed this same preference to the judge ³ who presided over the original divorce action about five years earlier, when she would have been five or six.

[¶ 9] Mother later filed a motion which acknowledged that the child had been interviewed in camera and that she had told the court that she preferred to live with Father, but indicated that she had changed her mind and now wanted to remain with her mother. Mother therefore asked the district judge to interview MLW again. Father objected to another interview, contending that MLW did not want to be interviewed by the court or a guardian ad litem. No written or oral ruling on that motion appears in the record. If there was a second interview, there is likewise no transcript of it in the record.

[¶ 10] Before the case went to hearing, Father paid $3,994.74 on obligations he owed under the original decree, and Mother filed a partial satisfaction of judgment reflecting that payment. It is not clear what obligation this payment satisfied, although the record reflects the original debt of $2,500.00 and claims by Mother for medical and other expenses for MLW's benefit.

[¶ 11] The record does not reflect the date on which the claims of the parties were heard on the merits. Father represents that the hearing took place on April 30 and May 1 of 2012, and that appears to be consistent with the dates on which the parties filed their pretrial statements.⁴ Mother's pretrial statement indicated that she had remarried, that MLW was excelling in school and participating in sports, 4–H, and Sunday school, and that she had been playing the violin and was accepted into the Cheyenne Youth Symphony. She generally offered to present evidence that she had been an excellent mother. She claimed that Father owed her $8,454.38, but acknowledged that he had made a partial payment, leaving a balance of $4,526.33.

[¶ 12] In his pretrial statement, Father claimed to be able to present evidence that would establish that he had a stable home free of tensions he claimed to exist in Mother's, which he alleged included conflict between MLW and Mother's new spouse. He contended that MLW preferred to live with him. He listed MLW as a witness if Mother would not stipulate to admissibility of the in camera interview done about a year earlier.⁵ Father's pretrial statement does not reflect what evidence, if any, he intended to present to challenge the alleged debt of $4,526.33.

[¶ 13] The record does not include a transcript of the hearing on the merits, and the Court therefore cannot determine what evidence was presented or whether MLW testified, except to the extent that information is reflected in the district court's ruling. The district court later set a hearing at which it indicated that it would render an oral decision on the pending issues on October 2, 2012. Unfortunately, the transcript of that hearing is not in the record. The district court clerk's index describes a “Transcript of Decision Proceedings Dated October 2, 2009 Filed 11/28/12.” This is undoubtedly the transcript of the ruling, but it was not designated as part of the record on appeal under W.R.A.P. 3.05(b).

[¶ 14] The parties were unable to agree on a proposed order after the district court announced its decision, and Father timely objected to Mother's proposed order and the ruling on which it was based. Father contended that the net income the Court found and announced at the October 2, 2012 hearing did not support the award of $665.70 in monthly child support reflected in the oral ruling or Mother's proposed order.

[¶ 15] On January 28, 2013, the district court entered an “Order Granting Abatements, Modifying Child Support and Judgment on Medical Arrears and Denying Modification of Custody.” ⁶ The order bears the watermark of Mother's attorney on the second page, and we conclude that it was the order she proposed.

[¶ 16] The district court found that Father had failed to meet the burden of proving that there had been a material change in circumstances, and therefore denied his petition to modify the custody provisions of the decree. It also found that changes in the parties' income would result in a 20% or greater increase in support. It recited that Mother's net monthly income was $2,862.35 and that Father's was $2,262.99, concluding that presumed child support would be $655.79. This is obviously incorrect, as the net income figures in the order would reflect a substantial decrease in Father's net income and a substantial increase in Mother's. The order also indicated that the court did not intend to deviate from the presumptive amount under the statutory child support tables. The order awarded Mother a judgment of $4,538.00, although it did not specify the basis for the award.

[¶ 17] Father promptly moved to amend the order to change the child support calculation and to vacate the judgment. He contended that the net income figures the court found actually required a decrease in support, and that the judgment was unsupported by any findings of fact or conclusions of law and was therefore void. Mother filed a response which disagreed with Father's claims, with the following exception:

The Plaintiff admits that the Court found that there was a 20% change in increase [sic]...