*1 BAILEY, Appellant Michael V.
(Defendant), (Plaintiff). BAILEY, Appellee
Diane L.
(Three Cases.) 96-97, 96-289,
Nos. 96-290. Wyoming.
Supreme Court
Feb. 1998. *2 support; income for child
tion
upon
awarding
the dis-
based
income; arriving
a
puted
at
division
stay of
property;
and
a
the
marital
pending appeal. The husband
decree
also
in the
a
seeks relief
form of
schedule of
payments
lump
sum awarded
the
that the value
property settlement. We hold
justified
corporate
assigned to the
stocks was
submitted,
the
the evidence
did not abuse its discretion
of
court
argued
matters
this
the
makes a schedule of
Court.
evidence
the
payments
lump
sum awarded
the
appropriate.
the valuation of
We affirm
stocks;
corporate
the
the determination of
support;
income for
of child
awarded;
amount of
pending
of the decree
the denial
hearing
appeal. We remand the case for
payments
schedule of
settlement award.
Appellant,
Brief of
In his
way:
articulates
issues
Property Division
it
I. Did the trial court err when valued
businesses
Husband’s interests
higher than the value
were
binding
liquidated
pursuant
for
to be
agreements?
sale
restrictive
Anthony T.
of Davis & Cannon
Wendtland
Support
Child
Sheridan;
M. Vincent
(argued),
Joel
calculating
err
II. Did
trial court
Vincent, Riverton,
Appellant.
Vincent &
sup-
base
income for child
Husband’s
net
Laramie,
Appellee.
Nyla Murphy,
A
port purposes?
by including
err
III. Did
trial court
TAYLOR, C.J.,
THOMAS,
Before
annual
income from R &
bonus
Husband’s
MACY,
LEHMAN,
JJ.
GOLDEN
Ent.,
monthly support
Inc. in his base
THOMAS, Justice.
calculation?
story
presents a familiar
This case
by failing
err
Did the trial court
IV.
marriage
V.
which Michael
dissolution
“phantom[]
from Hus-
income”
exclude
(the husband)
accomplish as
Bailey
desires to
support calculation?
“bonus” child
band’s
possible.
inexpensively to himself as
by failing to
Did the trial court err
V.
primary
he raises
seeking
goal
issue
net
Husband received
exclude the
valuation of
stock of several
in 1994
from a one-time bonus
provi-
in a
corporations, which resulted
parties’
home and
used
L.
pay Diane
sion of the decree that he
by the
trial court
divided
(the wife)
Bailey
division?
the division of
between
to balance
apply
fail to
Did the trial court
include
VI.
parties.
Other asserted issues
statutory
percentage
guideline
proper
its discre-
claim that the district
abused
sup-
the calculation of Husband’s “Bonus”
The husband and the wife were married on
18, 1982,
port?
During
December
in Riverton.
years
marriage,
twelve
of their
five children
Alimony
Following
marriage,
were born.
their
awarding
VII. Did the trial court err in
bank,
employment
wife left her
at a
light
inWife
of the incorrect
*3
homemaker, primarily responsible
became a
determination,
property
child
divi-
rearing
for the
of the
The
children.
sion and the other circumstances of the
businesses,
long
family
worked
for
hours
his
case?
provided
and he
main
financial
VIII.
the decree contain an im-
Does
family.
long
Not
before the birth of
proper alimony award to Wife character-
child,
1994,
August
fifth
in
of
ized as a division of debt?
separated.
September,
and the wife
In
Stay Appeal
on
Complaint
Legal Separation,
wife filed a
IX.
Did the
court err
by
and that was followed
a counterclaim for
appeal
Husband a
hearings,
divorce
the husband. After four
alimony?
of
the district court
entered Decree of Di-
1995,
vorce in December of
but that decree
In
Appellee,
Bailey,
the Brief of
Diane L.
finality
did not address with
of
division
Pierre,
L.
Diane
St.
the wife sets forth
a/k/a
property,
custody
of the
child
these issues:
support,
4,
spousal support.
or
March
On
disposition
I.The
and
of
1996,
Decree,
the court entered an
and
Order
alimony
awards
and child
of
pro
later
April
amended nunc
tunc on
upon divorce are matters entrusted to
division,
settling
custody,
the discretion
the trial court. Ab-
of
alimony
child
and
issues.
discretion,
sent a clear abuse
of
case,
custody
The district
present
court awarded
this court
husband,
marriage
first child of the
should
the trial court’s decision
affirm
[J
granted custody
and the wife was
appeal
other four children. No
is taken with
A.
properly
The trial court
valued Bai-
respect
custody.
to child
The husband does
business,
ley’s
family
interests in the
appeal from the decisions of the trial court
committed no abuse
its discretion
of
valuations and the
and should be affirmed.
property,
division of that
and
B. The trial court’s award
is
of
alimony.
statute,
allowed
within its discre-
tion,
In accordance with
just
equitable
WYO. STAT.
20-2-
under
(1977),
respec-
the court considered the
circumstances
this case.
of
parties,
tive merits of the
and determined
The
C.
awarded is not an
aggrieved party
the wife was the
abuse
discretion and was based
of
just
equitable
division of
upon evidence in the record. There-
property.
controlling
The husband owns a
fore, the trial court’s award
closely
family
interest in two
held
businesses
support should be affirmed.
and is
stock holder
two more
Reply
Appellant,
A
Brief of
filed
corporations
businesses.
The
husband, adds these issue statements:
controlling
which he holds a
interest are Bad
appeal
I. Wife’s brief on
does not sub-
(Bad
Boys
Liability Company
Limited
stantively address the Husband’s issues LLC)
Bailey Enterprises,
Inc. The other
cogent argument.
corporations
two
R &
severely
II. Wife
misstates matters
and Grandview Estates. The court found
the record.
that it was
to divide the
value
designate any
ownership
III. Wife has failed to
interests in these businesses
portions
equally
wife,
appeal;
of the record on
a num-
between the husband and the
allowing
ber of her references to the record should while
the husband to maintain own-
ership.
arriving
be stricken.
at a valuation of the
increases
the husband’s income.
hus-
husband’s interests
these
year
accepted
then was
once
primarily
the valuations
band
ordered
suggested at
support”
disposable
those valuations
his
36.6% of
discount
It
accountant.
the trial
income which
net
was defined
W-2
ownership
husband’s
interest
then valued the
return that
income on
federal tax
$5,016.66 month,
per
plus any
follows:
more than
Company
income,
pass through
Value
its
value.
Boys LLC
Bad
$432,000
appeals
husband also
the trial
court’s
(1994valuation)
=
alimony.
held that
$313,200.00 award of
The court
x 72.5%
retraining
additional funds
Bailey Enterprises. Inc.
imposed
obligation
*4
(5/31/94valuation)
$780,000
alimony upon
in
for a
month
the husband
=
430,500.00
x 55.2%
years.
specifically
8
period of
that the husband had the reasonable
found
Enterprises,
R
Inc.
& J
ability to
the amounts awarded and a
Book Value 12/31/94
22,476.00
earnings
$240,124
expectancy
of future
9.36%
reasonable
X
12,187.00
Grandview Estates
property
equitable
meet the fair and
settle-
ment.
own-
Using these values
corporate
the value of
ership of the
stock and
firmly
more
There
few rules
disputed,
that was not
the
property
jurisprudence
in our
than
established
the
that
total value of the
district court found
the
disposition
that
of marital
proposition
the
was
In order to
family property
the
income for child
property,
calculation of
assets,
distribution of the
balance the
purposes,
granting
of alimo
the husband to
court ordered
ny
are within
discretion of the
all
the sound
days after
in
to the wife within 180
cash
Examples
court.
of cases that articulate
trial
4,1996.
payment
this lump
It is
sum
March
Scherer,
propositions are
v.
931
those
Scherer
which
seeks an
251,
(Wyo.1997); Triggs
Triggs,
v.
254
P.2d
payment
of this cash
permitting
order
653,
Kennedy
(Wyo.1996);
656
920 P.2d
v.
paid
requirement to be scheduled rather than
(Wyo.1988)(giving
Kennedy,
appears that
the amount
LLC,
Bad
of the stock of
into account the
the valuations
by the
took
R & J Enter
per Bailey
Inc. and
of the wife of
$748.00
incorrectly
determined.
prises,
also
that
it was
were
The court
ruled
month.
that
value that should
invoke an
clause
His
appropriate to
escalation
found
re
P.2d
invoked should be that
approved in Madison v.
859
be
agreements
eompa-
for these
any future
sales
(Wyo.1993), anticipation
strictive
severely
persons
nies which
limit
that he could raise
borrowing
the cash
money,
whom the shares
be sold and set the
point
but there seems to be little
prices. The husband contends that these are
imposing
upon
creating
demand
the values he would
if
receive
he should
entity
an interest drain to an outside
when a
liquidate
endeavor to
his
payment
shares. He con-
fair
schedule would
for that
tends that the court abused its
paid
interest to be
to the wife. We therefore
adopting any other method of valuation.
provision
reverse the
requiring
the decree
that the
be
provides
in making
Our statute
a divi-
days,
within 180
and remand the case for a
property,
sion of marital
a trial court is re-
hearing to
determine an
and rea-
quired
disposition
to “make such
sonable
schedule.
parties
just
appears
equitable, having regard
respective
argues
The husband
the court
parties
merits of the
and the condition in
in calculating
erred
pur
income for the
divorce,
will be left
pose
The hus
party through
whom the
was ac-
band’s income was found
the trial court to
quired
imposed upon
and the burdens
be
month. The husband com
party
for the benefit of either
plains that
figure
this income
is neither
(1994).
Wyo.
children.”
Stat.
20-2-114
salary
based on his
nor
proper
question
We considered the
of how stock in
*5
legislature
evaluation of his income. The
has
corporation
should be valued
defined
purposes
income and net income for
statute Neuman. We
of this
of determining
support
way:
held that the trial court is not
to
accept any
accounting
one
method for
(i)
any
“Income” means
pay-
form of
achieving the valuation as more accurate
ment or
in money
return
or in kind to an
Neuman,
any
than
other.
Wyo. Stat
whether the trial court
out of the husband’s en-
to determine
children
again is
arriving
an abuse
P.2d at 1280.
committed
hanced income.
income. The
of the husband’s
at the amount
support” was defined
the court as
“Bonus
of the hus-
a calculation
record demonstrates
the base
36.6% of
W2 income above
$72,-
salary
a base
income from
band’s
husband, plus any
income attributed to the
from R & J
plus yearly distributions
000.00
pass through income or its
$14,000.00 from which
Inc. of
regard
complains
value.
In this
for income taxes.
was deducted
30%
“phantom
formula includes
income.”
this
salary
argues that his current
is set
including “any
Our statute defines income
correct,
agree
but
This is
at
money.”
form of
return
position
that he is in a
with the wife
20-6-301(a).
Since the hus-
WYO. STAT.
According
the various
salary.
control his
holder in two of
band is the
stock
record,
the hus-
company documents
in a
these
he is
salary
high
be set as
band’s
can
income,” in
“phantom
much the
to control
flowing
year
any penalty
from
without
salary.
way
same
as he can control
corporation or other stockholders.
to the
applied
trial court
a factor or 36.6%
declares, “[gjross in-
specifically
Our statute
though
support.” Even
the court
potential
parents
also means
come
followed the
tables
voluntarily unemployed or underem-
who
monthly
not
we do
base
20-6-301(a).
We hold
ployed.” Wyo. Stat
an abuse of discretion for the trial
consider it
unfair, inequitable or uncon-
it
that was
percentage of 36.6 for the
court to use a
the trial court to conclude
scionable for
bonus
That additional
upon the hus-
support should be based
ac-
within the trial court’s discretion
vested
salary
he can control.
potential
band’s
cording Madison.
note that the husband is
regard,
In this
having
complaining about
*6
appeals
The husband also
applica-
support,
but our
per month
child
Alimony
pur
alimony.
is awarded
award of
require-
result in a
tion of the statute would
§
pro
which
suant to
STAT. 20-2-114
WYO.
higher
actually pay a
ment that the husband
may
party
to either
court
decree
“[t]he
vides
amount, $1,307.58 per
month.1 Since
alimony
out of the estate
reasonable
final
appealed
has not
awards
wife
ability
having regard for the other’s
other
decree,
adjust
do not
»
* * »
authorities,
ali
cases establish
when
In
with our
Our
accordance
awarded,
controlling factor is the
enough
mony
in value that we
amounts are close
is
disturbing
justified
pay, though
them on
spouse
would not be
to
ability of the other
439, 442
Dowdy Dowdy, 864 P.2d
appeal.
Hen
matters
be considered.
other
(Wyo.1993).
Hendrickson,
1265, 1267
P.2d
583
drickson v.
that he
(Wyo.1978). The husband contends
monthly child
In
to the base
addition
per
ability
to
does not have the
$800.00
support, the district court determined
years, and he also
month
the wife for 8
paid in
support” should be
accordance
made
the trial
that the errors
contends
poten
invalidated. Parallel with our discussion of ent to the trial court a bond in the husband is the such amount as shall be fixed the trial * * added). stock holder in two successful (Emphasis The hus- destiny. and he his financial This controls any authority pro- not offer band does nor demonstrates that he is control of the any cogent legal argument explain vide “ability pay.” light of the discretion he premise entitlement. Since fundamental bonuses, enjoys respect salary, argument missing, we do not con- distributions, we are that the satisfied County sider the matter further. Weston ability husband indeed has the the Hosp. Joint Powers Bd. v. Westates Const. alimony respect awarded. With to his other Co., (Wyo.1992). 841 P.2d 850 contention, since we have found that there We have examined the record in this case was no abuse of discretion in the division of carefully to determine whether there oc- the marital or in the child any part curred abuse of awards, justified setting would be respect the trial court with to the alimony aside the award on that claimed division, alimony the child ground. award. We are satisfied that the evidence in The husband also insists that certain ample the record is the determi- payments assigned himto the trial court nations the trial court. We affirm all the alimony. Specifically constitute de facto he awards, and the case is remanded points payments including to certain hearing the trial court to conduct a continuing counseling costs of for his children arrive at a reasonable schedule with repairs and the future cost of to the wife’s money award made to (or, alternative, purchase car equal parties prop- division of the marital children). car new for the wife and While it erty. is time that “a final award of is a preferable modern substitute LEHMAN, Justice, concurring part remedy forcing continuing rela dissenting part. tionship estranged parties,” between the it is equally goal true “that the can be deterred ruling I would affirm the of the trial court by practical impossibility. It is in the media I, therefore, respects. in all concur with the tion of all these factors that sound discretion majority, exception with the of the reversal Broadhead, is vested.” Broadhead v. I cash award to which (Wyo.1987). P.2d We cannot con *7 respectfully dissent. arguments presented by clude from the husband that the trial court abused its dis The trial court ordered husband to regard. cretion in this days within 180 from the date of judgment. determined that re- argument, queries, As a final quirement an to be abuse of discretion when “[d]id the trial court err in Husband payment fair a schedule could stay appeal alimony?” on interest to be to the wife. I am con- Essentially, question this rhetorical is an- X-3, vinced that husband’s exhibit which re- swered own husband’s brief where he earnings Bailey Enterpris- flects retained states that “while the trial court have es, $868,872, Y-3, Inc. of which reflects deny stay request, discretion to once this earnings retained in R & J jurisdiction right stay takes $240,124,totaling in excess of million right one of becomes under W.R.A.P. 4.02(a).” earnings, of retained disclose more than the examining question the second necessary means to or otherwise obtain a apparently proffered, whether payment to stay sum cash wife. This court husband should receive a as a matter of court, relegates position wife to the an right supreme look now unse- respective begins cited rule. The rule with this state- cured creditor husband’s busi- ment, which, appellant enterprises so entitled ness if ac- “[w]henever —a appeal, appellant may cept pres- repeated proclamations, desires a husband’s no award, pays the will force matter how he insolvency.
into
Gary DOYLE, Appellant Dean
(Defendant), v. Wyoming,
The STATE (Plaintiff).
Appellee
No. 96-246. Wyoming.
Supreme Court of
Feb. 1998.
Rehearing April Denied 1998.