Summary 2010 WY 70

Summary of Decision issued May 28, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Lauderman v. State of Wyoming, Department of Family Services ex rel. JEN

Citation: 2010 WY 70

Docket Number: S-09-0100

Appeal from the District Court of Park County, Honorable Steven R. Cranfill, Judge

Representing Appellant (Respondent): Wendy Press Sweeny, Worland, Wyoming

Representing Appellee (Petitioner): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Elisabeth B. Lance, Assistant Attorney General

Representing Appellee Russell Nomura: David M. Clark, of Worrall & Greear, Worland, Wyoming

Issues: Whether the district court abused its discretion in calculating the parties’ respective incomes. Whether the district court abused its discretion in admitting certain letters illustrating respondent father’s efforts to find employment into evidence.

Holdings: Mother first objects to the district court’s finding that she was voluntarily unemployed. The evidence supports this finding. Mother had worked as a welder in 2007. After she was let go from that job, she decided to be a stay-at-home mother. Mother testified that there were welding jobs currently available in her town, which she was physically capable of performing. She wasn’t applying for them because she didn’t want to be away from her children. Given this testimony, it was well within the district court’s discretion to find Mother voluntarily unemployed.
Mother next objects to the amount of income imputed to her. In 2007, when she was working as a welder, she was earning $16.00 per hour. Mother testified that jobs were available at the time of the hearing and were paying $16.00 per hour. Mother’s own evidence supports the district court’s decision to impute to her a salary of $16.00 per hour.
Mother’s objection continues that the district court abused its discretion when it did not subtract any amount for federal income tax. The district court’s calculations show that it considered federal income tax. It determined the tax credits available to Mother exceeded the amount of federal income tax owed based on the imputed salary. In making this determination, the district court adopted figures provided by the DFS indicating the amount of earned income credit and child tax credit would be more than the federal income tax due. The district court’s reliance on the DFS calculation is reasonable under the circumstances.
Mother contends Father should be found to be voluntarily underemployed. The evidence shows that Father worked as a drywaller for 18 years. He owned and operated a drywall business in the Jackson area. When business declined in the Jackson area Father relocated to Worland. Despite his attempts to keep the business going, Father testified there was simply no work available. Father even looked for jobs in the oil field sector but was unable to find anything. Given the evidence, there is no credence in Mother’s contentions that Father isn’t looking hard enough or in a wide enough geographic scope.
Mother next takes issue with the district court’s computation of Father’s income. First, she argues the district court should have included in-kind benefits Father received from his business as income. Mother does not, however, identify any in-kind benefits received by Father.
Mother also argues the district court erred in not including certain draws Father took from his business in 2008 as income. Father’s accountant, however, explained that draws are unrelated to business income. Draws come from money already in the business that could have been earned at any time during the business’s existence. Father’s future income, therefore, would be limited to amounts earned during the current year. Under the circumstances, the district court did not abuse its discretion in not factoring the draws into Father’s income for child support purposes.
Finally, Mother argues the district court abused its discretion in using Father’s 2008 income instead of his 2007 income. The district court explained its decision in its order. It did not use Father’s 2007 income because it did not accurately reflect current economic conditions. The district court determined Father was not likely to be able to earn the same amount in the future. Given the well-documented collapse of the construction industry, as well as Father’s testimony as to how the economic downturn is affecting him personally, the district court was within its discretion in relying on Father’s 2008 actual income as more appropriately indicative of Father’s future earning capacity.
During the hearing, to support his testimony that he had been actively looking for work, Father offered multiple letters from contractors stating they had no work available for him. The district court admitted the letters into evidence over Mother’s several objections including a hearsay objection. The decision of whether or not to admit evidence lies within the discretion of the trial court. A trial court’s ruling will not be disturbed absent abuse of that discretion. As always, even if it is determined that the trial court erred in ruling on the admissibility of evidence, errors which are harmless will be disregarded. In the present action, the court need not consider whether the admission of the letters constituted error because, even if it did, Mother was not prejudiced by such introduction. The district court listened to Mother’s objections and admitted the letters over the objections stating “[t]he Court can give them the weight that it determines, so I don’t think that it’s going to be prejudicial.” There is no further indication that the district court relied on the letters, nor was it necessary for the district court to do so. Father testified extensively as to his continuing job search. The letters did nothing more than corroborate that testimony.

There was no abuse of discretion in the district court’s calculation of the parties’ respective incomes for child support purposes. The decision is reasonable under the circumstances. There was also find no harm in the introduction of letters corroborating Father’s extensive testimony on his attempts to find work.

Affirmed.

J. Golden delivered the opinion for the court.

J. Hill dissented: The proceedings that are included in the record on appeal are insufficient to disturb the status quo.

Link: http://tinyurl.com/27d4wq4 .

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