The State of Wyoming, Department of Family Services, Child Support Enforcement v. Connie M. Powell , 2013 Wyo. LEXIS 60 ( 2013 )

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 56APRIL TERM, A.D. 2013
May 9, 2013
THE STATE OF WYOMING,
DEPARTMENT OF FAMILY
SERVICES, CHILD SUPPORT
ENFORCEMENT,
Appellant
(Intervenor),
S-12-0192
v.
CONNIE M. POWELL,
Appellee
(Defendant).
Appeal from the District Court of Hot Springs County
The Honorable Robert E. Skar, Judge
Representing Appellant:
Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy
Attorney General; Jill E. Kucera, Senior Assistant Attorney General; and Jared
Crecelius, Senior Assistant Attorney General.
Representing Appellee:
No appearance filed.
Before KITE, C.J., HILL, VOIGT, BURKE, and DAVIS JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] In 2009, the Wyoming Department of Family Services (Department) filed an
action to enforce a 2003 order requiring Connie Powell to pay child support and certain
related expenses. Instead of enforcing the 2003 order, the district court set aside the 2003
order, ordered that the child support obligation be recalculated, and directed that the
revised child support obligation be applied retroactive to 1999, the date the children’s
father obtained custody of the children. The Department appeals, contending that the
district court abused its discretion in setting aside the 2003 order. We hold that the
district court was without jurisdiction to modify the 2003 child support order and remand
for entry of an order consistent with our direction herein.
ISSUE
[¶2] The Department presents the following issue on appeal:
In 2012, the district court ordered a retroactive recalculation
of child support against Connie Powell, the non-custodial
mother. The district court also set aside a 2003 judgment
entered against Ms. Powell for child support arrears and
medical and travel expenses even though neither the mother
nor the father filed a motion or petition requesting
modification of child support or relief from the judgment.
Did the district court abuse its discretion by retroactively
modifying the child support order and setting aside the
judgment without a proper petition or motion from a party
requesting such relief?
FACTS
[¶3] Charles Ferree (Father) and Connie Powell (Mother) divorced in 1990. Mother
and Father had two children as issue of the marriage, CF and WF, and originally entered
into a Property Settlement and Custody Agreement that gave Mother primary custody of
the children and established Father’s child support obligation. In 1991, Mother and
Father stipulated to a modification of their agreement, which provided that each parent
would have custody of one child and neither would pay child support. The agreement
was approved by a May 16, 1991 Order Modifying Decree of Divorce.
[¶4] In 1998, Mother and Father stipulated to transfer the case from the First Judicial
District to the Fifth Judicial District, Hot Springs County, since Mother lived out of state
and Father lived in Hot Springs County. In 1999, Mother and Father again stipulated to a
modification of their divorce decree, this time agreeing that Father would have primary
custody of both children, Mother would be responsible for half the children’s medical
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expenses not covered by insurance and half of the travel expenses for the children’s visits
with Mother, and Mother would have no responsibility to pay child support. In August
1999, the district court entered an order approving the stipulated modification except the
terms governing child support. Regarding child support, the court ruled that the parties’
stipulation was contrary to law, and it ordered:
Plaintiff and Defendant shall submit financial
affidavits to the Court within twenty (20) days of this Order,
along with any further stipulations as to child support. If
child support is not resolved within thirty (30) days, the
parties shall request a hearing before the Court.
[¶5] Neither Mother nor Father filed financial affidavits or requested a hearing on the
child support as ordered, and the case remained inactive until May 2003, when Father
filed a Motion for Order to Appear and Show Cause. Through that motion, Father
alleged that Mother had made no payments toward her half of the children’s expenses or
any child support payments since entry of the 1999 order. Father requested that the
district court order Mother to pay her half of the children’s expenses and that:
The Court order the Defendant to supply copies of tax
returns from 1999 to present and a financial affidavit to
determine whether or not the Defendant is capable of working
to support the minor children and determine child support for
both children either at the statutory minimum or pursuant to
Wyoming Statutes, and make said payments retroactive from
the Court’s Order of August 23, 1999.
[¶6] Following a hearing on June 30, 2003, the district court entered an Order on
Medical and Child Support, dated August 4, 2003. The court made findings concerning
medical and travel-related expenses and granted Father the sum of $21,027.85 “for
arrearages for child support, medical care, and transportation costs of the minor children
as of June 30, 2003.” Concerning child support, the order stated, in part:
7. An Order was issued by this Court changing
primary custody of the minor child, [WF], which order was
signed and filed on August 23, 1999, which ordered the
parties to submit appropriate wage affidavits for
determination of proper child support.
8. Proper affidavits were not submitted.
9. Pursuant to the Order to Appear and Show Cause
signed by this Court on May 23, 2003, the Defendant and
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Plaintiff supplied income affidavits and copies of pay stubs.
Based upon the pay stub submitted by the Defendant, she
currently has an average net income of $1,693.29 per month.
10. Based upon pay stubs submitted by the Plaintiff,
he currently has an average net monthly income of $3,600.93.
11. Based upon the child support guidelines for two
children, the current total amount of support due for the
support of the child[ren] would be $1,218.78.
12. Since Plaintiff, as father, has primary custody of
the child[ren], the percentage of support owed by the mother
is $389.81 per month.
13. Said support should be set retroactive to the date
of custody granted by this Court on August 23, 1999,
resulting in a total arrearage of $17,931.26 in child support
arrearage through and including June 30, 2003. The next
regularly scheduled payment due by the Defendant to the
Plaintiff for child support is July 23, 2003, and child support
payments are due on the 23rd of each month thereafter.
[¶7] Mother did not appeal this order, and the case again remained inactive until
December 2003. On December 1, 2003, Mother filed a Petition for Modification of
Order requesting that she be awarded primary custody of the parties’ daughter, WF.
Father responded to Mother’s motion on February 10, 2004, by filing a Motion to Modify
Visitation, requesting that Mother be permitted only supervised visitation with the
children, and a Motion for Order to Appear and Show Cause, alleging Mother had failed
to comply with the August 2003 child support order.
[¶8] The district court held a hearing on the motions on March 4, 2004. This hearing
was not reported, and the court did not enter a written order following the hearing. On
March 9, 2004, Father’s attorney submitted a letter to the court, apparently seeking
clarification and guidance regarding what occurred during the March 4th hearing. The
letter from Father’s attorney stated that during the hearing the court denied Mother’s
custody motion and Father withdrew his visitation motion, and stated as follows
concerning child support:
The Court made a ruling regarding the Show Cause
that despite the Defendant having testified that she has never
paid any support for the minor children, that the Plaintiff had
unclean hands due to his failure to file a financial affidavit.
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The Court stated there was no financial affidavit in the Court
file. Upon making an investigation after Court, it was found
both Plaintiff and Defendant had financial affidavits on file
with the Court, but they had been placed in a separate, sealed
envelope, marked "Confidential Financial Information".
....
Please notify the parties if the Order simply needs to
be amended or whether or not the old Order needs to be put
into effect and we need to request a rehearing on the matter.
… If no direction is given by the Court, the Defendant will
file for a rehearing in 10 days.
[¶9] The record contains no indication that either party requested a new hearing
following this correspondence, and the district court did not enter an order subsequent to
the letter. The case again remained inactive until 2009. On October 14, 2009, the
Department filed an Affidavit and Motion for Order to Show Cause and for Judgment of
Contempt against Mother based on Mother’s alleged failure to pay child support and
related expenses. On March 31, 2010, the court issued an Order Denying Contempt and
Requiring Information to be Submitted to the Court. In so ordering, the court found that
Mother’s failure to pay child support was not willful but was instead a result of confusion
over the court’s order following the March 2004 hearing. The court thus ordered that the
parties or their attorneys submit “all relevant notes or other documents from the March 4,
2004 hearing to provide the court a basis for a written order from said hearing.” 1
[¶10] On September 2, 2010, the Department filed a Motion for Order from March 4,
2004 Hearing. Through its motion, the Department informed the district court that no
information was submitted in response to the court’s order requiring the submission of
information, and it requested that the court set a hearing to determine the content of the
March 4, 2004 order.
[¶11] On March 14, 2012, Mother filed a Request for Entry of Order on Hearing Held
March 4, 2004. Mother attached to her request an affidavit from the attorney who
represented her in the March 4, 2004 hearing. That attorney attested as follows:
To the best of my knowledge and belief, at that
hearing, because of plaintiff having “unclean hands” for
failure to file financial records, the Court order dated August
4, 2003 was withdrawn and Plaintiff, by and through his
attorney …, was instructed to file a new motion if so desired.
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Between the March 4, 2004 hearing and the Department’s 2009 contempt motion, the district court
judge who presided over the March 2004 hearing retired and a new district court judge was appointed.
4
[¶12] On May 21, 2012, the district court held a hearing on the Department’s motion.
During that hearing, the court indicated that from the record, it was unable to resolve
what occurred during the March 2004 hearing and it was thus willing to take testimony
on the question. The only testimony offered was from Mother, who testified that she
could not recall how the issue of child support was raised during the March 2004 hearing.
She further testified:
He did rule at the time that he was modifying or
dismissing the previous 2003 court order because it was
stated that Mr. Ferree had unclean hands by not submitting
his financial affidavit, and that if he wished to pursue further
child support, that they would need to file a new motion with
the Court, and at the time I was told that the order was
dismissed.
[¶13] On June 29, 2012, the district court issued an Order Setting Aside August 4, 2003
Judgment and Child Support Obligation. The court found and ordered as follows:
1. The order from August 4, 2003 is set aside,
including the child support provisions, arrears provisions, and
the judgments for child support arrears, medical arrears and
travel expenses.
2. Child support shall be re-calculated and shall be
retroactive to the date the father obtained custody of the
children. The calculation shall be based on the incomes of
the parties and the statutory guidelines in effect during 2004.
3. The recalculation will not include travel or medical
expenses since the August 4, 2003 order does not clearly
explain how those expenses were calculated for judgment
purposes. Charles Ferree may petition the court for said
travel and medical expenses that were included in the August
4, 2003 judgment if he chooses.
[¶14] The Department timely filed a notice of appeal. Father did not participate in the
2012 proceedings or in this appeal. Mother did not participate in the appeal to this Court.
STANDARD OF REVIEW
[¶15] A district court’s decision to modify a divorce decree is reviewed for an abuse of
discretion. Rocha v. Rocha, 925 P.2d 231, 233 (Wyo. 1996). “Judicial discretion is a
composite of many things, among which are conclusions drawn from objective criteria; it
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means exercising sound judgment with regard to what is right under the circumstances
and without doing so arbitrarily and capriciously.” Hanson v. Belveal, 2012 WY 98, ¶ 4,
280 P.3d 1186, 1192 (Wyo. 2012) (quoting Selvey v. Selvey, 2004 WY 166, ¶ 15, 102
P.3d 210, 214 (Wyo. 2004)). An abuse of discretion occurs when a court’s decision
exceeds the bounds of reason or constitutes an error of law. Rocha, 925 P.2d at 233
(citing Cranston v. Cranston, 879 P.2d 345, 348 (Wyo. 1994)).
[¶16] Because a court has jurisdiction to modify a divorce decree only as provided by
statute, this appeal also presents jurisdictional issues, which are questions of law that this
Court reviews de novo. Hall v. Park County, 2010 WY 124, ¶ 3, 238 P.3d 580, 581
(Wyo. 2010); Thomas v. Thomas, 983 P.2d 717, 719 (Wyo. 1999).
DISCUSSION
[¶17] In our view, the first question that must be addressed in this appeal is whether the
district court had statutory authority to enter its order vacating the 2003 child support
order and to enter a new order retroactive to 1999. We must conclude that the court did
not have such authority.
[¶18] This Court has, on a number of occasions, addressed a district court’s authority to
modify a divorce decree and the statutory limitations on that authority. We have held:
Generally, courts have “only that authority to act which is
conferred by the subject statute.” Bush v. State, 2003 WY
156, ¶ 9, 79 P.3d 1178, 1183 (Wyo. 2003) (quoting Merkison
v. State, 996 P.2d 1138, 1141 (Wyo. 2000)). It is well settled
that divorce is purely a statutory process, with courts having
no authority in such proceedings other than that provided by
statute. Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 956
(1937); 24 Am.Jur.2d Divorce and Separation § 7 (2008).
This limitation extends to the court’s power to modify a
divorce decree. Aragon v. Aragon, 2005 WY 5, ¶ 10, 104
P.3d 756, 759-60 (Wyo. 2005); Smith v. Smith, 895 P.2d 37,
41 (Wyo. 1995); CSP v. DDC, 842 P.2d 528, 531 (Wyo.
1992); 24 Am.Jur.2d Divorce and Separation § 369 (2008).
Weiss v. Weiss, 2009 WY 124, ¶ 13, 217 P.3d 408, 411-12 (Wyo. 2009); see also
Hanson, ¶ 17, 280 P.3d at 1192-93.
[¶19] The statute governing modification of a child support order provides, in relevant
part:
(a) Any party, or the department of family services in
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the case of child support orders being enforced by the
department, may petition for a review and adjustment of any
child support order that was entered more than six (6) months
prior to the petition or which has not been adjusted within six
(6) months from the date of filing of the petition for review
and adjustment. The petition shall allege that, in applying the
presumptive child support established by this article, the
support amount will change by twenty percent (20%) or more
per month from the amount of the existing order. The court
shall require the parents to complete a verified financial
statement on forms approved by the Wyoming supreme court,
and shall apply the presumptive child support set out in this
article in conducting the review and adjustment. If, upon
applying the presumptive child support to the circumstances
of the parents or child at the time of the review, the court
finds that the support amount would change by twenty
percent (20%) or more per month from the amount of the
existing order, the court shall consider there to be a change of
circumstances sufficient to justify the modification of the
support order. The provisions of this section do not preclude a
party or assignee from bringing an action for modification of
a support order, based upon a substantial change of
circumstances, at any time. Every three (3) years, upon the
request of either parent or, if there is a current assignment of
support rights in effect, upon the request of the department,
the court, with respect to a support order being enforced
under this article and taking into account the best interests of
the child involved, shall review and, if appropriate, adjust the
order in accordance with the guidelines established pursuant
to this article. Any adjustment under the three (3) year cycle
shall be made without a requirement for a showing of a
change in circumstances. …
....
(c) In addition to the petition authorized under
subsection (a) of this section, the court on its own motion, or
the department without petitioning the court, may increase
monthly child support payments to include amounts for
arrearages or may decrease the monthly child support
payment in cases of emergencies or if the arrearages are paid.
Any action by the department to increase monthly child
support payments under this subsection shall allow the
obligor a reasonable opportunity to contest the action in
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accordance with the Wyoming Administrative Procedure Act
and rules and regulations adopted by the department.
(d) An order for child support is not subject to
retroactive modification except:
(i) Upon agreement of the parties; or
(ii) The order may be modified with respect to any
period during which a petition for modification is pending,
but only from the date notice of that petition was served upon
the obligee as provided by the Wyoming Rules of Civil
Procedure, if the obligor or the department is the petitioner, or
to the obligor, if the obligee or the department is the
petitioner.
Wyo. Stat. Ann. § 20-2-311 (LexisNexis 2011).
[¶20] The district court was not presented with any of the above-quoted circumstances
that would statutorily authorize it to modify the 2003 child support order. None of the
parties, Mother, Father, or the Department, moved for a modification of the child support
order, and the circumstances were not as described in § 20-2-311(c), such that the court
could act on its own motion to modify. See also Connors v. Connors, 769 P.2d 336, 348-
49 (Wyo. 1989) (recognizing petition to modify child support as a statutory prerequisite
to court’s jurisdiction to act). Similarly, the court was not statutorily authorized to make
its modifications retroactive. No petition to modify was pending, and the record contains
no agreement of the parties to a retroactive modification. See also Thomas, 983 P.2d at
720 (holding that by statute child support order may not be modified retroactively beyond
the date of petition to modify unless parties agree to modification).
[¶21] Because the district court did not have before it a petition to modify the August
2003 child support order, or a statutory circumstance authorizing the court to act on its
own motion, the court was without jurisdiction to modify the child support order.
Moreover, our holding is not affected by the fact that the court was attempting to give
effect to the 2004 proceedings.
[¶22] The record is of course entirely unclear as to what occurred during the March 2004
hearing. What is clear, however, is that Mother did not appeal the August 2003 child
support order, she did not file a W.R.C.P. 60 motion seeking relief from the child support
order, and she did not file a petition to modify the child support order. Whatever may
have occurred during the unreported March 2004 hearing, the court had before it only
Father’s contempt and visitation motions and Mother’s custody motion. We thus
conclude that to the extent the court in 2004 intended to order that the 2003 child support
order be modified or vacated and for such modification to be applied retroactively, the
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court was without jurisdiction to enter such an order and the order was void. See Weiss,
¶ 14, 217 P.3d at 412 (holding district court without jurisdiction to modify order where
no petition to modify had been filed, dismissing appeal, and remanding for entry of an
order vacating modification order).
[¶23] This Court has recognized that the limitations on a court’s jurisdiction to modify a
divorce decree serve important policy goals in the finality and predictability of
judgments. See Hanson, ¶ 18, 280 P.3d at 1193; Smith v. Smith, 895 P.2d 37 at 41 (Wyo.
1995). We have also observed the policy served by not allowing retroactive
modifications of child support orders:
Furthermore, allowing retrospective modifications of divorce
decrees may encourage default. A party might decide to stop
payment and allow arrearages to accrue to a substantial
amount, with the hope and anticipation that the court will
cancel the accrued payments owed to the receiving party. We
prefer a rule which encourages a party to seek modification of
a divorce decree at the moment his financial situation
changes. In the present case, appellant chose to simply stop
making the required payments. We will not sanction this type
of self-help by allowing retrospective modification of the
decree.
Parry v. Parry, 766 P.2d 1168, 1170 (Wyo. 1989).
[¶24] While we recognize that the district court was attempting to craft an order to
correct an incomplete record, we conclude that the court exceeded its statutory authority.
Mother has taken no steps to legally modify the 2003 child support order, and the order
therefore stands and is subject to enforcement.
CONCLUSION
[¶25] The district court was without jurisdiction to modify the August 2003 child
support order where no petition to modify had been filed. We therefore dismiss the
appeal and remand to the district court for entry of an order vacating the Order Setting
Aside August 4, 2003 Judgment and Child Support Obligation filed on June 29, 2012.
[¶26] The procedural history of this case does not reflect well on the judicial system and
there are multiple reasons why. However, one fundamental problem is the lack of a
record. The district court and the parties expended time, effort and resources in the 2004
hearing and, apparently, a decision was made. No court reporter recorded the
proceedings or the decision. Whether that was because of the historically outdated
$45.00 appearance fee required by statute for the reporter, who is a State employee, to
9
appear or the widespread practice of attorneys and judges to proceed without a reporter,
we do not know. The reporter also was not even utilized by the court to memorialize its
order. The attorneys failed to follow the court’s directive to prepare an order consistent
with the oral ruling and the parties failed to file the financial information the court
requested, although a letter to the court by the attorney for Father suggested the financial
affidavits had been filed, but placed in another confidential file. Mother failed to pay any
child support and now has a substantial financial obligation. And, apparently, no one
followed up to assure the court’s orders were followed. Worse yet, this process drug out
for over twelve years. Whether that failure was the result of no system of keeping track
of deadlines or simple inattention, we do not know. Ultimately, public resources had to
be expended by the child support enforcement authorities to attempt to recoup child
support that should have been paid, but the required amount is uncertain. The first judge
retired and the incoming district judge attempted to make the best of a bad situation, but
did not have the requisite authority to do so. Finally, the cost and delay of an appeal to
this Court resulted, and we are left with no choice but to remand the matter for the parties
to start over. Surely our judicial system, and all of the actors within that system, could do
better. While a situation as bleak as this one is the exception, similar failures appear in
far too many cases. The Court believes that it is time for the bench and bar to take a hard
look at our system and collaborate on procedures that will assure that judges, lawyers,
and parties consistently perform our respective responsibilities so that situations such as
those existing in the cases cannot occur.
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