Kelly Suzanne Brush, F/K/A Kelly Suzanne Davis v. Roger Ryan Davis
2013 WY 161
| Wyo. | 2013Background
- Parents divorced in 2005 in Natrona County; Mother awarded primary custody of the minor child and Father ordered to pay support.
- Father (pro se) filed a Petition for Modification of Custody and Time-Sharing in the same court in 2012 but failed to attach a copy of the original decree and did not use the Supreme Court pro se form.
- Father filed an affidavit of service and sought entry of default after Mother did not file an answer; the clerk entered default and the court nonetheless held a hearing rather than entering an unchallenged order.
- At the hearing Mother (in default) was allowed to cross-examine and make a closing statement but was not permitted to present her own witnesses or testify; the court found a substantial change in circumstances and transferred custody to Father.
- The court ordered child support: Father filed a confidential financial affidavit; Mother did not file the ordered financial affidavit and had previously filed an affidavit of indigency, which the court used to calculate presumptive support.
- Mother appealed, arguing lack of subject matter jurisdiction, denial of due process by default procedure, and error in the child support determination; the Supreme Court affirmed.
Issues
| Issue | Mother's Argument | Father's Argument | Held |
|---|---|---|---|
| Jurisdiction to modify custody when petitioner failed to attach certified copy of prior custody order (Wyo. Stat. § 20-2-203(c)) | Failure to attach the certified decree deprived the court of subject matter jurisdiction | Court had continuing jurisdiction under § 20-2-203(a); omission of exhibit was clerical and did not divest jurisdiction | Court retained subject matter jurisdiction; omission did not strip court of power to decide the modification |
| Compliance with Uniform Child Custody Jurisdiction Act notice requirements (Wyo. Stat. § 20-5-309) | Father failed to include statutorily required statements about other proceedings, so court lacked jurisdiction or the matter should have been stayed | Statute is mandatory but not jurisdictional; court may stay but omission does not deprive jurisdiction | Omission did not deprive court of jurisdiction; Mother did not allege other proceedings existed |
| Due process and validity of default procedure (service/pleading inaccuracies and bar on presenting evidence) | Clerical errors in pleadings and the court’s refusal to let Mother present evidence violated due process | Mother was served and aware of claims; court held a hearing consistent with Rule 55(b)(2) and allowed cross-examination and closing; Mother failed to move to set aside default under Rule 55(c)/60(b) | No due process violation: errors were minor, Mother knew the issues, hearing complied with Rule 55(b)(2); default not set aside because Mother never sought relief under Rule 60(b) |
| Child support calculation when Mother failed to file financial affidavit (Wyo. Stat. §§ 20-2-304, 20-2-308) | Court erred by entering support without receiving Mother’s financial affidavit or stating the presumptive support calculation | Mother disobeyed court order to file affidavit; court could use other financial evidence (affidavit of indigency) and stated it ordered presumptive amount | No abuse of discretion: court reasonably used Mother’s affidavit of indigency after she failed to comply and expressly ordered presumptive support |
Key Cases Cited
- McGuire v. McGuire, 608 P.2d 1278 (Wy. 1980) (definition of jurisdictional power to hear and determine matters)
- DF v. MLM (In re MKM), 792 P.2d 1369 (Wyo. 1990) (subject matter jurisdiction principles)
- Excel Constr., Inc. v. Town of Lovell, 268 P.3d 238 (Wyo. 2011) (failure to attach exhibit did not deprive court of jurisdiction when claim otherwise identified)
- Noonan v. Noonan, 122 P.3d 964 (Wyo. 2005) (Rule 55(b)(2) requires evidentiary basis for default judgments affecting custody/support; court must obtain financial evidence)
- In re JLB, 914 P.2d 828 (Wyo. 1996) (default judgments are subject to relief under Rule 60 and normally not reviewed on appeal absent such motion)