Summary 2007 WY 67

Summary of Decision issued April 26, 2007

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Case Name: Moss v. Moss

Citation: 2007 WY 67

Docket Number: 06-23

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge

Representing Appellant (Plaintiff): Kenneth S. Cohen of Cohen Law Office, PC, Jackson, Wyoming

Representing Appellee (Defendant): Lea Kuvinka of Kuvinka & Kuvinka, PC, Jackson, Wyoming.

Issues: Whether the district court abused its discretion in dividing the marital property by awarding both of the major appreciating assets, the business and the house, to the husband and awarding to the wife an equalizing payment for less than that proposed by the husband and parceled out over a period of eight years rather than in an immediate lump sum as proposed by the husband, dispossessing the wife and the parties’ two children from the marital residence effectively denying her the ability to purchase substitute housing and thereby rendering the property division unfair and inequitable. The district court ordered the husband to pay child support at a rate less than the presumptive child support amount, without providing any justification for that deviation, and the court failed to impute a higher income to the husband based on the testimony of the husband’s valuation expert, who testified that the parties’ business was paying the husband substantially less than the market value for his services which the expert calculated at $75,000 per year.

Facts/Discussion: Wife sought review of the district court’s divorce decree.
Standard of Review: The division of marital property is within the sound discretion of the district court and the Court will not find an abuse of discretion unless the property distribution shocks the conscience or appears so unfair that reasonable people could not abide it. Decisions concerning child support are reviewed under the abuse of discretion standard as well.
Property Division: Wife alleged the property division rested on a material factual mistake rendering it inequitable. She stated that by recognizing a debt of $470,000 both against the business and the residence the district court erroneously subtracted twice from the marital assets what was essentially one debt. The Court stated it seemed clear from the record that Husband was awarded marital property on the basis of a mistake of fact resulting in Husband actually receiving assets of greater value than Wife to a degree not intended by the court or the statute. Wife also complained about the lump sum equalization payment. Having reviewed the record, the Court found the district court’s approach to the method by which Husband was required to make the equalizing payment neither shocked the conscience not was it unfair and inequitable.
Child Support: The district court failed to identify the statutory presumptive child support nor did they make basic findings of fact that would allow for the calculation of child support. The order was therefore reversed.

Holding: Wife demonstrated the distribution of marital property was based upon a factual mistake which constituted an abuse of discretion. The child support order was not supported by adequate findings. Consequently, the Court reversed and remanded the divorce decree to the district court for further consideration. The Court emphasized the ultimate distribution is for the district court to resolve within its sound discretion utilizing accurate information concerning the value of the total marital estate.

Reversed and remanded.

J. Kite delivered the decision.

J. Golden, concurring in part and dissenting in part: J. Golden agreed the divorce decree should be reversed and remanded for reconsideration of child support, but not concerning the property distribution. He felt that the finding of the district court would be within its discretion if it were supported by pertinent facts and circumstances. J. Golden felt that under the circumstances, the district court did not act arbitrarily or capriciously.

Link: http://tinyurl.com/23bq8q .