Summary 2005 WY 145

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Case Name: Noonan v. Noonan

Citation: 2005 WY 145

Docket Number: 05-27

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing Appellant (Defendant): Tom Sutherland, Casper, Wyoming

Representing Appellee (Plaintiff): Richard L. Harden, Casper, Wyoming

Date of Decision: November 22, 2005

Issues: Whether the district court abused its discretion in refusing to set aside a default divorce decree.

Holdings: W.R.Civ.P. 55(b)(2) provide a that if in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper. The clear import of this language, in the context of the present case, is to require the district court to base its findings of fact regarding property distribution, child custody, visitation, and support on some evidence in the record. An entry of default prevents the defaulted party from appearing and presenting evidence; it does not relieve the non-defaulting party of its obligation to produce an evidentiary basis for the desired relief, nor does it relieve the district court of its obligation to base its findings of fact upon such evidence.

Wyo. Stat. Ann. § 20-2-308(a) provides that no order establishing or modifying a child support obligation shall be entered unless financial affidavits on a form approved by the Wyoming supreme court which fully discloses the financial status of the parties have been filed, or the court has held a hearing and testimony has been received. While in a default situation, it may be difficult or even impossible to obtain the financial affidavit of the defaulted party, the obligation remains for the non-defaulting party to file such affidavit, and the obligation remains for the district court to obtain sufficient financial evidence of both parties' income to make factual determinations, and to comply with the presumptive child support guidelines found in Wyo. Stat. 20-2-304 or to determine whether to deviate from those guidelines, as allowed by Wyo. Stat. 20-2-307. That did not happen in this case.

Additionally, child custody decisions must be based upon the best interests of the children, with consideration given to specific statutory factors. Child custody and visitation orders, even in the default situation, may not be entered without consideration of these factors. That did not happen in this case.

Special rules have been developed for cases where the district court orders split custody of the parties' children. When the court exercises its discretion in custody matters involves splitting custody of children between parents or other unconventional custody approaches, the trial court must provide an explanation of its reasoning and place its findings on the record. A reasoned explanation and an expression of findings of a trial court's conclusion will assure the reviewing court that a comprehensive evaluation of all relevant factors occurred prior to the award of custody. In the case at hand, not only were the district court's findings inadequate, there was almost no evidence before the district court

The default judgment in this case is vacated, with the exception of that portion of the judgment granting a divorce to the parties. There was no evidentiary basis for the district court's findings of fact in regard to property distribution, child custody and visitation, and child support. The denial of the motion to set aside the default divorce decree is reversed to that extent and this matter is remanded to the district court for further proceedings consistent herewith.

J. Voigt delivered the opinion for the court.