Summary 2005 WY 147

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Case Name: McElwain v. McElwain

Citation: 2005 WY 147

Docket Number: 05-32

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge

Representing Appellant (Defendant): Vernon R. McElwain, pro se

Representing Appellee (Plaintiff): James A. Hardee, Douglas, Wyoming

Date of Decision: November 22, 2005

Issues: Whether the district court erred in determining that the unpaid balance of a mortgage debt established by a divorce decree was not extinguished when the property was refinanced. Whether the district court erred in awarding delinquent child support because the minor child was emancipated.

Holdings: In the present action, Appellant was ordered to pay one-half of the mortgage debt directly to Appellee. The decree permitted Appellant to pay his portion of the indebtedness in installments of $210.00 per month. Nothing in the divorce decree provides for this debt to be extinguished upon refinancing and Appellant points us towards no authority to support his position. Furthermore, the decree awarded ownership of the property to Appellee and authorized her to "mortgage, sell, pledge or otherwise deal in such property . . . ." The provisions of the decree did not condition Appellant's obligation to Appellee upon the existing financing or her continued ownership of the residence. Alternatively, Appellant appears to challenge the amount of the judgment. Appellant claims the decree capped his total obligation for the mortgage at $20,000.00. He denies responsibility for any additional amounts for interest or other costs normally associated with a mortgage. Appellant contends he has paid approximately $14,490.00 and the judgment for $21,194.00 fails to account for his past payments. Pursuant to the decree, Appellant was ordered to pay "[o]ne half (1/2) of [the] Mortgage debt (est. at $20,000.00 each) . . . ." The divorce decree did not specifically exclude interest or the payment of other costs associated with the mortgage debt. The outstanding mortgage debt at the time of refinancing in January 2004 was $42,388.00. The judgment entered by the court, $21,194.00, is one half of that amount. Furthermore, the hearing was not recorded and no statement of the evidence was filed by either party pursuant to W.R.A.P. 3.03. Because the record is insufficient, it must assumed that the district court correctly applied Appellant's prior payments to the outstanding mortgage balance. In the absence of anything to refute the trial court's findings, it will assumed that the evidence presented was sufficient to support those findings and it will be sustained. Accordingly, there was no error by the trial court in entering its judgment concerning the mortgage debt.

In Wyoming, emancipation is recognized under both statutory and common law. A declaration of emancipation shall be conclusive evidence that the minor is emancipated. Emancipation may also be proved by other evidence like any other fact. In the present action, Appellant does not contend that a declaration of emancipation exists to establish emancipation. However, he has failed to provide an adequate record to support his claim that sufficient evidence was presented to establish emancipation. Absent a sufficient record, it must be assumed that sufficient evidence exists to support the trial court's implicit finding that the child was not emancipated.

The decision of the district court is affirmed.

J. Burke delivered the opinion for the court.