Summary 2007 WY 77

Summary of Decision issued May 11, 2007

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Case Name: Plymale f/k/a Donnelly v. Donnelly

Citation: 2007 WY 77

Docket Number: 06-219

Appeal from the District Court of Albany County, the Honorable Wade Waldrip, Judge

Representing Appellant (Defendant): Patrick M. Hunter, Casper, Wyoming.

Representing Appellee (Plaintiff): Devon O’Connell Coleman, Pence and MacMillan, Laramie, Wyoming.

Issues: Mother: Whether the district court improperly calculated the abatement allowable to Father. Father: Whether Mother failed to file a timely objection to the claim for abatement and as such should this appeal be dismissed. Whether the issue of proper abatement in this matter is barred by collateral estoppel and as such should this appeal be dismissed. Whether it was clearly erroneous for the district court to permit abatement in child support in the amount of $2,310.00 due to Father’s status as the summer custodial parent.

Facts/Discussion: Mother challenged an order granting Father’s claim for abatement following the summer of 2005.
Failure to Timely Object: Father argued the objection was untimely and the appeal should be dismissed. The Court disagreed. Father ignored the stipulated order which acknowledged that Mother had not yet filed a separate objection but indicated she was deemed to have objected.
Collateral Estoppel: Each time Father has physical custody of his children for more than 15 consecutive days, he is permitted by statute, to file a claim for abatement. Mother is permitted to object to the claimed abatement. An order is then entered granting or denying the abatement. The amount can be contested each time a new claim is made. It is inappropriate to apply the doctrine of collateral estoppel because a prior abatement for a different time period was approved. Mother timely appealed from the order granting Father’s 2005 claim. The contested matters have not been fully litigated and as a result, Mother is not estopped from challenging the 2005 order.
Calculation of Abatement: This case rests primarily on the proper interpretation of the child support abatement statute which presents a question of law, which the Court reviews de novo.
Wyo. Stat. Ann. § 20-2-305(a) sets forth the amount of time a non-custodial parent must have children in his care before a proper claim for abatement may be made. Father did not meet the requisite amount of time to properly claim abatement. It was therefore improper to abate his support after August 8, 2005. The Court has not previously construed the meaning of “unless otherwise ordered by the court” in the operation of Wyo. Stat. Ann. § 20-2-305(a). When the abatement statute is read in pari materia with the child support guidelines, it becomes clear that the discretion of the district court regarding the proper amount of abatement comes into play during the proceedings involving the establishment or modification of support. The proper interpretation of the statute is that child support shall abate by ½ of the daily support obligation unless otherwise ordered by the court in the original support order or a modification of that order. The district court retains discretion to abate support in an amount greater or lesser than ½ of the daily support obligation depending on what is deemed appropriate within proceedings establishing or modifying a support order. If a support order fails to address abatements, the default statutory provision applies.
The Court found unpersuasive Father’s argument that to give effect to the language that declares him custodial parent for the summer months, his full support obligation should be abated or in the alternative, Mother should pay support during that time. If the district court had intended to relieve Father of his support obligation for the summer months, it could have provided that relief in the original decree or in the subsequent modification.

Holding: The district court erred by abating Father’s child support obligation in contravention of the allowable time period contained in Wyo. Stat. Ann. § 20-2-05(a). The district court also erred by granting an abatement greater than ½ of the daily support obligation due. The Court reversed the district court’s order granting the abatement for the year 2005 and remanded for entry of an order consistent with the opinion.

Reversed.

J. Burke delivered the decision.

Link: http://tinyurl.com/2tfelb .