Wood v. Wood

• Decision Date: 29 September 1998
• Docket Number: No. 97-354,97-354
• Citation: 964 P.2d 1259
• Parties: Rodger W. WOOD, Appellant (Defendant), v. Loretta A. WOOD, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1259

964 P.2d 1259

Rodger W. WOOD, Appellant (Defendant), v. Loretta A. WOOD, Appellee (Plaintiff).

No. 97-354.

Supreme Court of Wyoming.

Sept. 29, 1998.

Keith R. Nachbar, Casper, for appellant (defendant),

Peggy Taylor Pfau of Attorney's Office of Peggy Taylor Pfau, P.C., Gillette, for appellee (plaintiff).

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

MACY, Justice.

Appellant Rodger Wood (the father) appeals from the denial of his motion to modify his child support obligation.

We reverse and remand.

ISSUES

The father requests our review of several issues:

A. Was the court's calculation and finding of income of the Defendant an abuse of discretion or an error of law where the court:

1. imputed income to the Defendant where there was no evidence to support the [c]ourt's finding?

2. added interest income from a retirement account as part of the Defendant's income, when the account had already been considered and divided in the divorce decree and only 55% of the interest income is the Defendant's?

3. used the highest three weeks of income for the Defendant in a seven month period, although that income level was reflective of neither the Defendant's income at the time before the hearing nor the Defendant's average income?

B. Was the court's calculation and finding of the Plaintiff's income an abuse of discretion or an error of law where the court:

1. used $1,824.00 per month as Plaintiff's income, when she admitted in testimony that her net income was approximately $3,485.61?

2. excluded from Plaintiff's income $1,536.00 in social security benefits she receives each month, even though Plaintiff testified that she uses that money to pay her everyday household expenses?

C. Was the court's deviation from the presumptive support guidelines an abuse of discretion or an error of law where the court:

1. made no specific finding that application of the presumptive guidelines would be unjust or inappropriate, as required by Wyo. Stat. § 20-6-302(b)?

2. found that the Defendant was voluntarily underemployed even though the uncontroverted testimony was that he was earning as much money as he could under the circumstances?

3. found that the Defendant would be released from Community Alternatives of Casper "imminently" and therefore would be earning additional income, although there was no evidence to support such a finding?

D. Was it an abuse of discretion or error of law for the court to order that all of Defendant's retirement assets, both exempt and nonexempt, be paid to Plaintiff for child support, and for the court to attempt to put a lien on those assets, when both the Defendant and the Plaintiff earn monthly incomes sufficient to very comfortably support the minor children?

FACTS

The father married Appellee Loretta Wood (the mother) on July 24, 1991. The mother had two daughters from a previous marriage, and the father adopted these girls shortly after he married their mother. The couple had two more children during their marriage.

In February of 1995, the father was sentenced to serve a term of not less than two years nor more than eight years in the Wyoming State Penitentiary for taking indecent liberties with a minor. He spent approximately four months, from March of 1995 until July 19, 1995, at the Wyoming State Penitentiary before being transferred to the Honor Conservation Camp in Newcastle. In October of 1996, he was transferred to Community Alternatives of Casper.

The parties were granted a divorce on September 15, 1995. The divorce decree required the father to pay $930 per month in child support. At that time, the father had money in a credit union account, and his support payments were drawn from that account. After the funds in the credit union account were depleted, the father moved to have the amount of his child support reduced. After holding an evidentiary hearing on the matter, the district court denied the father's motion. The father appeals from that denial.

STANDARD OF REVIEW

The party who sought to have a child support order modified had the burden of showing that a substantial or material change in circumstances occurred after the initial decree was entered. Murphy v. Holman, 945 P.2d 1193, 1194 (Wyo.1997). We review the district court's determination regarding the request for a child support modification to ascertain whether or not the court abused its discretion. Cranston v. Cranston, 879 P.2d 345, 348 (Wyo.1994). In reaching a conclusion, we must decide the ultimate issue

of whether or not the district court could have reasonably concluded as it did. Raymond v. Raymond, 956 P.2d 329, 331 (Wyo.1998). If the district court acted in a manner that exceeded the bounds of reason under the circumstances, the court abused its discretion. Duffy v. State, 730 P.2d 754, 757 (Wyo.1986).

DISCUSSION

In deciding whether or not to modify the father's child support, the district court performed two separate calculations. In the first calculation, the district court found that the father's monthly net earnings from his employment were $1,760 and that the monthly growth income on his retirement account was $300. It then imputed in-kind income of $250 per month for living at Community Alternatives of Casper "essentially at State expense." It added these amounts together and determined that the father's monthly net income was $2,310. The district court found that the mother's average monthly income from her employment was $1,949. It subtracted $125 per month from that amount, because this portion of the mother's income was sporadic income, and determined that the mother's monthly net income was $1,824. Using the child support guidelines and these monthly net income figures, the district court ascertained that the father's presumptive support obligation would be $780.09 and that this amount would not be a reduction of at least twenty percent from the original support obligation as is required for a child support modification. WYO. STAT. § 20-6-306(a) (1997).

In its second calculation, the district court added $1,500 to the mother's monthly income to reflect the social security benefits that the two oldest children received because their biological father had passed away. Adding this amount to the mother's net income would result in the father presumptively owing $701.04 under the child support guidelines, and this amount would be a reduction of more than twenty percent from the original support obligation. The district court decided, however, that, if it included the social security benefits in the mother's net income, it should deviate from the presumptive child support because the father was voluntarily underemployed, his release from Community Alternatives of Casper was imminent, the children had increased medical expenses as a result of the father's abuse, and the father had adequate assets from which the previously ordered child support could be paid. The district court, accordingly, ordered that, in any event, the child support would remain at $930 per month.

The father asserts on appeal that the district court abused its discretion in calculating the parties' net incomes, by deviating from the presumptive child support, and by ordering that his retirement assets be used to make the child support payments and to be security for the support obligation.

A. Net Incomes

We begin with a review of the district court's calculations of the net incomes for the parties. Contained within this broad issue are the following subissues: whether or not (1) the district court properly imputed in-kind income to the father; (2) only fifty-five percent of the growth income on the retirement account should be attributed to the father; (3) the district court properly used the highest income figure out of the seven-month history that was provided for the father; (4) the social security benefits, which the mother received for the benefit of her two oldest daughters, should be included in her net income; and (5) sporadic income should be excluded to reduce the mother's net income.

1. In-kind Income

The district court declared that, although the father was paying only $300 per month to live at Community Alternatives of Casper, the fair market value of room and board at Community Alternatives of Casper was $550 per month. The district court concluded, therefore, that the father was receiving in-kind income of $250 per month. We do not agree that this amount should be included in the father's net income calculation because the record does not support its inclusion and because the district court improperly speculated in arriving at this amount.

The mother contends that the district court could have taken judicial notice of this amount by using the Community Alternatives of Casper contract, which she had submitted as an offer of proof but which had been rejected as an exhibit. The mother maintains that the contract established that Community Alternatives of Casper incurred more expense in housing the father than the amount he was paying for room and board.

The offer of proof was merely that and did not qualify as evidence. We further reject the mother's contention that the district court could have taken judicial notice by using the Community Alternatives of Casper contract because the information in the contract was not "generally known within the territorial jurisdiction of the [district] court" nor was it "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." W.R.E. 201(b). See also Nuspl v. Nuspl, 717 P.2d 341, 343 (Wyo.1986). The $250 that the district court imputed to the father cannot, therefore, be included as part of his net income.

2. Retirement Account Growth Income

The district court also included an amount in the father's net income calculation that represented the entire growth income on his retirement account. Because the district court divided this retirement account subsequent to the divorce so...