Summary 2009 WY 58

Summary of Decision issued April 28, 2009

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

Case Name: Steele v. Neeman

Citation: 2009 WY 58

Docket Number: S-08-0117

Appeal from the District Court of Campbell County, the Honorable Dan. R. Price II, Judge.

Representing Appellant Steele (Mother): Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Appellee Neeman (Father): DaNece Day and Christopher R. Ringer of Lubnau & Bailey, PC, Gillette, Wyoming.

Facts/Discussion: Mother sought an upward modification of child support against Father. The district court modified the child support amount but downward to less than half the statutorily determined presumptive amount. The district court cited the child’s poor relationship with the father which included lack of visitation as the reason for deviation.

Deviation from presumptive child support amount: Wyo. Stat. Ann. § 20-2-304 established a method for determining child support amounts based on the parents’ incomes. The amount determined is rebuttably presumed to be the correct amount of child support to be awarded in any proceeding to establish or modify temporary or permanent child support amounts. Section 20-2-307(b) established the method by which the determining court might deviate from the presumptive amount. As the Court stated in Sharpe, lack of visitation and negative feelings between a noncustodial parent and child are not proper factors that a court may consider in determining whether to deviate from the presumptive support guidelines. The amount of time a child spends with each parent is relevant only in regard to calculating the expenses each parent incurs when physically in custody of a child.

Conclusion: A parent is supposed to be a financial resource for his/her child. It is a responsibility of parenthood. This responsibility exists regardless of visitation or negative feelings between parent and child. The district court erred when it used those criteria as the basis for deviating from the established presumptive child support.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/d6ykwj .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 38

Summary of Decision issued April 8, 2008

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

Case Name: Keck v. Jordan

Citation: 2008 WY 38

Docket Number: S-07-0201

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge

Representing Appellant (Defendant): Kathryn J. Edelman of Edelman Law Office, Gillette, Wyoming.

Representing Appellee (Plaintiff): Rex O. Arney and Vincent P. Schutte of Brown, Drew & Massey, LLP, Sheridan, Wyoming.

Facts/Discussion: Keck (Mother) appeals from an order modifying child support claiming the district court abused its discretion in allowing a deviation from the presumptive child support guidelines and permitting Jordan (Father) to redact portions of his tax return pertaining to his new wife.
Deviation from presumptive child support amount: In establishing support pursuant to the guidelines, the district court has discretion to deviate from the presumptive amount on a case by case basis. The deviation can only occur in accordance with the requirements of § 20-2-307(b). The Court reviewed the record and found a lack of evidence to support the deviation from the standard child support on the basis of the younger daughter’s level of financial need and possible benefits she might receive in the future. They further held that the evidence showing that Father contributed to the older daughter’s college expenses could not be utilized to deviate from the support owed for the second daughter.
Redaction from income tax returns: The Court was unable to conclude that the district court abused its discretion in allowing Father to redact portions relating to his wife’s income – particularly in light of the requirement that the parties fully and completely disclose their financial status by affidavit when modification is sought.

Holding: The district court’s deviation from the child support guidelines was reversed. The district court’s determination that Father may redact portions of his tax return related solely to his wife’s income was affirmed.

Reversed in part, affirmed in part.

J. Kite delivered the decision.

Link: http://tinyurl.com/6dz6lw .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 207

Summary of Decision issued December 28, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

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