Windham v. Windham

• Decision Date: 28 April 2015
• Docket Number: No. S–14–0185.,S–14–0185.
• Citation: 2015 WY 61,348 P.3d 836
• Parties: Brian WINDHAM, Appellant (Plaintiff), v. Brandi Lee WINDHAM, Appellee (Defendant).
• Court: Wyoming Supreme Court

348 P.3d 836

2015 WY 61

Brian WINDHAM, Appellant (Plaintiff)

v.Brandi Lee WINDHAM, Appellee (Defendant).

No. S–14–0185.

Supreme Court of Wyoming.

April 28, 2015.

Representing Appellant: Christopher J. King of Worrall & Greear, P.C., Worland, Wyoming.

Representing Appellee: Rennie Polidora, Wyoming Coalition Against Domestic Violence and Sexual Assault, Laramie, Wyoming.

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

Opinion

FOX, Justice.

[¶ 1] In this custody, visitation, and child support modification action, the district court granted Brian Windham sole custody, modified the visitation schedule, and required Brandi Windham to pay child support for the parties' three minor children, in an amount less than the statutory presumptive amount. The district court awarded expenses, pursuant to W.R.C.P. 37(a)(4)(A), incurred by Ms. Windham's pro bono attorney in her pursuit of discovery responses. The district court denied Mr. Windham's W.R.C.P. 11 motion for sanctions against Ms. Windham for seeking attorney's fees and expenses for the discovery violations. Mr. Windham appeals the court's child support deviation, denial of his Rule 11 motion, and award of expenses to Ms. Windham's attorney. We affirm.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion when it deviated from Ms. Windham's presumptive child support obligation?

2. Did the district court err as a matter of law when it authorized the award of expenses under W.R.C.P. 37 that were not incurred by Ms. Windham?

3. Did the district court abuse its discretion when it denied Mr. Windham's Rule 11 motion for sanctions?

FACTS

[¶ 3] The parties were divorced in April 2012, in Big Horn County, Wyoming. The original divorce decree provided for joint legal and physical custody of the parties' three minor children. In February 2013, Mr. Windham filed a Petition to Modify Custody, Visitation and Support.

[¶ 4] Ms. Windham, whose attorney represented her pro bono,¹ was unsuccessful in her attempts to obtain discovery responses from Mr. Windham, and therefore filed a Motion to Compel Responses to Combined Discovery Requests. The district court ordered Mr. Windham to respond to the discovery requests and conditionally granted Ms. Windham's request for attorney's fees incurred in pursuing the motion to compel, explaining:

[T]he Court will want some authority ... to grant legal fees in light of the fact that your client has not incurred that expense.... So at this point I am going to request that your fees and costs be reduced to appropriate affidavits with the necessary affidavits on the reasonableness of fees, but I want some legal authority for me to do it when your client hasn't had to pay for it.

....

And then if necessary we'll hold a telephonic hearing to determine the issue of legal fees.

[¶ 5] Ms. Windham submitted her Argument in Support of Awarding Attorney's Fees to Nonprofit Civil Legal Services Providers, with attached Affidavit of Attorney's Fees. The affidavit stated in pertinent part:

2. As a nonprofit I do not charge an hourly rate for legal services. I am allowed to receive attorney's fees in qualified actions, such as this Motion to Compel. Any fees which may be awarded are placed in a separate litigation account....

3. The rate that is used to calculate fees for the type of services provided in this case is $100.00 per hour, which is reasonable and prevailing for such legal services in Wyoming.

....

4. The fee for professional services requested in this case is $1200.00, which includes eleven (11) hours of travel and one (1) hour of court time.

5. Because the WCADVSA is based in Laramie, I stayed one (1) night at a hotel which is customary for our staff attorneys. The rate charged by the hotel was $107.91.

6. I rented a car to travel roundtrip between Laramie and Basin. This is also customary for our staff attorneys because it costs less to rent a car rather than be reimbursed at the federal rate of .565 cents/mile. The cost of the rental car for two (2) days was $204.33.

7. The cost of gas for the trip was $129.67.

8. The full amount requested is $1641.91, which includes my time and expenses directly related to this action.

Mr. Windham responded, arguing that pursuant to Rule 37(a)(4)(A), a party may only recover attorney's fees “incurred” in making its motion to compel discovery, and because Ms. Windham did not incur any fees, an award to her pro bono attorney was impermissible.

[¶ 6] Ms. Windham requested a hearing on the issue of attorney's fees. Mr. Windham notified Ms. Windham, pursuant to W.R.C.P. 11, that a motion for sanctions would be forthcoming if she persisted with her request for a hearing on the issue. Ms. Windham did not withdraw her request, and Mr. Windham filed Plaintiff's Motion for Rule 11 Sanctions, arguing that “Rule 37 of the Wyoming Rules of Civil Procedure does not support the Defendant's argument for attorney's fees and is misapplied in the argument brief presented by the Defendant.” Mr. Windham argued that Ms. Windham did not incur any attorney's fees, and her request for a hearing on the issue was a violation of Rule 11(b)(1), (2), and (3).

[¶ 7] The district court did not set a separate hearing on the fee issue, instead addressing it as a preliminary matter at the March 2014 modification hearing, explaining:

Originally the Court had decided to award attorney's fees; however, after having the arguments presented concerning whether or not attorney's fees can be awarded when a non-profit legal services office is providing services free of charge to a client, the Court has determined that under current rule and statutory authority there's no authority for us to grant the attorney's fees to reimburse or to enhance the financial well-being of the non-profit organization, and there's no basis to award the attorney's fees if they have not actually been incurred.... So as a result[,] the Court will decline to make an award for attorney's fees. That's an issue that is yet to be decided probably by the Supreme Court directly, and there certainly is not statutory authority at the present time. That's something maybe the non-profit organizations may want to take up with the Legislature and see if they can't get some legislation to allow for that.

The district court also denied Mr. Windham's Rule 11 request for sanctions, stating: “It is an issue that has not come before this Court before, so I would not grant the Rule 11 sanctions[.]”

[¶ 8] The district court issued its Decision Letter, finding Mr. Windham showed a material change in circumstances and concluding it was in the best interests of the minor children that sole legal and physical custody be granted to Mr. Windham.

[¶ 9] The district court ordered Ms. Windham to pay child support in the amount of $494.25 per month. This figure was arrived at using the presumptive child support calculations in Wyo. Stat. Ann. § 20–2–304 (LexisNexis 2013), then deviating downward from the presumptive amount of $650.32 by 24%. The court explained:

Defendant is also supporting [another minor child] in addition to the parties' three children and to be consistent with the deviations made for supporting other children this Court will deviate and reduce the child support owed by Defendant each month by 24% which is the amount generally utilized by the Basin Authority Agency and this Court in the four county area of Park, Big Horn, Washakie and Hot Springs.

[¶ 10] The district court declined to award attorney's fees to Ms. Windham because she incurred no fees addressing Mr. Windham's discovery violation; however it did award expenses incurred by Ms. Windham's attorney for travel and lodging necessary to attend the hearing on the motion to compel discovery.

[¶ 11] Mr. Windham timely appealed the child support determination, the award of Rule 37 expenses, and the district court's denial of his Rule 11 motion.

STANDARD OF REVIEW

[¶ 12] We review a district court's order modifying child support, including deviations from presumptive child support, for abuse of discretion. Egan v. Egan, 2010 WY 164, ¶ 7, 244 P.3d 1045, 1048 (Wyo.2010). We also apply an abuse of discretion standard to the imposition of sanctions under W.R.C.P. 11. Meyer v. Mulligan, 889 P.2d 509, 517 (Wyo.1995). We apply a de novo standard of review to the question whether the district court correctly interpreted W.R.C.P. 37. Harmon v. Star Valley Medical Center, 2014 WY 90, ¶ 17, 331 P.3d 1174, 1178 (Wyo.2014).

DISCUSSION

I. Did the district court abuse its discretion when it deviated from Ms. Windham's presumptive child support obligation?

[¶ 13] “The Wyoming legislature has established a comprehensive method for determining child support.” Keck v. Jordan, 2008 WY 38, ¶ 9, 180 P.3d 889, 892 (Wyo.2008). Presumptive child support is determined based upon the parents' net incomes, Wyo. Stat. Ann. § 20–2–304(a) ; however, the district court has discretion to deviate from the presumptive amount on “a case by case basis.” Keck, 2008 WY 38, ¶ 10, 180 P.3d at 892 (quoting Plymale v. Donnelly, 2007 WY 77, ¶ 37, 157 P.3d 933, 941 (Wyo.2007) ). The statute provides:

A court may deviate from the presumptive child support established by W.S. 20–2–304 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. 20–2–304, the court shall consider the following factors:

....

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

Wyo. Stat. Ann. § 20–2–307(b) (LexisNexis 2014). If a court finds that a deviation is warranted, it must set forth detailed findings to support the deviation. Keck, 2008 WY 38, ¶ 10, 180 P.3d at 892 (citing Plymale, 2007 WY 77, ¶ 37, 157 P.3d at 941 ); Shelhamer v. Shelhamer, ...