Summary 2007 WY 207

Summary of Decision issued December 28, 2007

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Case Name: Opitz v. Opitz

Citation: 2007 WY 207

Docket Number: S-07-0015

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

Representing Appellant (Defendant): Gibson Sean Benham, Casper, Wyoming

Representing Appellee (Plaintiff): Keith Robert Nachbar, Casper, Wyoming

Issues: Whether the district court abused its discretion by imputing income to Appellant in determining his child support obligation. Whether the district court violated Wyo. Stat. Ann. § 20-2-307(b) (2007) by failing to set forth specific findings for deviating from Wyoming’s presumptive child support guidelines. Whether Appellee should be awarded her attorney’s fees for this appeal.

Holdings: While a district court may exercise discretion in establishing child support, that discretion is guided by the applicable statutory provisions. In Wyo. Stat. Ann. § 20-2-304, the legislature established guidelines for calculating child support, based on factors including the parents’ respective incomes, custody arrangements, and the number of children. A court may deviate from the presumptive child support . . . upon a specific finding that the application of the presumptive child support would be unjust or inappropriate in that particular case. In considering whether to deviate from the presumptive child support, a court is required to consider a number of listed factors.
Husband claimed that the district court, in imputing to him the higher income from his previous position, ignored clear and undisputed evidence that his current employment was temporary. The decision to impute income rests on Husband’s “potential earning capacity.” Evidence in this case showed that Husband was well-qualified to be an automobile painter by his prior experience, job history, and training. There was evidence that such positions were available in the area, and in particular, that he could have continued working for his former employer. The prevailing wage was established by the salary Husband actually earned in that position. Husband suggested that he quit because his “body couldn’t – couldn’t do it,” but he provided no medical evidence and he later testified that he had not missed any work because of health problems or physical restrictions. In light of the statutory factors the district court was required to consider, this evidence amply supported a finding that Husband was realistically able to earn the higher income, and that he was voluntarily underemployed. Additionally, the district court also closely tailored its child support decision to Husband’s particular circumstances. The record demonstrated that the district court drew rational conclusions from objective criteria, and exercised sound judgment under the circumstances. There was no abuse of discretion in the district court’s decision.
Husband further contended that the district court failed to set forth specific findings justifying its deviation from the presumptive child support guidelines. In its Decree of Divorce in the instant case, the district court wrote that the child support amount represented a deviation from the child support guidelines and that it was appropriate to deviate from the actual income of the parties pursuant to Wyo. Stat. § 20-2-307 and to impute income to Husband because he left his job as an automobile painter voluntarily and was now voluntarily underemployed. The decree did not explicitly use the words “unjust or inappropriate” to justify the decision. If it was clear from the findings that the district court determined that applying the presumptive child support would be unjust or inappropriate, those specific words are not necessary. The district court’s decree is legally sufficient to comply with the statute.
Wife claimed that she was entitled to recover her attorney’s fees incurred in this appeal as permitted by Wyo. Stat. Ann. § 20-2-111. But while there is the authority to award attorney’s fees to Wife, it will not be done in the instant case. The question of who pays the attorneys’ fees in a divorce action is a part of the property division and thus is within the discretion of the trial court. The district court ruled in this action that each party to this divorce should pay his or her own attorney’s fees. This decision was not challenged on appeal, and there is no reason to deviate from the district court’s formula.

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/ytxkcv .

By Kathy Carlson