*1
tions,
like,
brought;
special appearances,
we will not disturb this
and the
motion is
ruling
knowledge
absent a clear abuse of
some
of rules
Aviation,
Wy
that discretion. U.S.
Inc.
procedure.”
and court
Avionics, Inc., supra; Atkins v.
oming
consistently
give
This court has
refused to
Corporation
Household Finance
Cas
special
litigant
consideration to a
who
per,
Wyoming,
counsel;
proceed
chooses to
without
he
Carpet
Wyo.,
Magee
Company,
Booth v.
expect
must
the same treat
receive
(1976). Further,
the burden
represented by
ment as if he were
an attor
bring
himself within
upon
the movant
G.P.,
976,
ney.
Wyo.,
Matter
P.2d
rule,
good
setting
i.e. to show
cause for
Casualty
Johnson v. Aetna
Aviation,
aside
default. U.S.
Inc.
Surety Company
Hartford,
Con
Avionics, Inc., supra; Atkins v.
necticut,
514,
(1981),
Wyo., Corporation
Household Finance
Cas-
cert. denied 454 U.S.
102 S.Ct.
per, Wyoming, supra. The movant has no
(1981),
L.Ed.2d 105
reh. denied 455 U.S.
judgment
right
absolute
to have a default
102 S.Ct.
The record this case does
not substantiate determination that the
judge refusing his discretion in abused judgment. Appellants
set aside the default requested twenty days additional an an CUBIN, Appellant Frederick W. swer, pa file but then failed to (Defendant), pers, way against inor defend They the action for five months. have nothing explain shown in the record to (Plaintiff). plead, allegation CUBIN,
failure and their Appellee R. Rochelle meritorious defense does alter the fact No. 83-209. they good have failed to show a ex answer, Supreme Wyoming. cuse for their failure to and thus Court of carry proof their failed to before Aug. the trial court. point again quote
We must at this
from Robison v. and Use Tax Divi Sales
sion, Commission, supra, 524 State Tax
P.2d at 83:
“Although every given consideration is
by Wyoming persons courts to who
for one reason or the other undertake to themselves,
represent persons such present
would be well advised to their clearly directly
claims to the court engage filing not to of mo- *2 Kastanek, appel- Casper,
Ronald A. lant. appellee. appearance
No C.J., THOMAS, ROONEY, Before CARDINE, ROSE, JJ. BROWN THOMAS, outstripped earning capacity, had Justice. coupled expense this the additional the court is called to issue which engendered remarriage by his and the fail- case whether a divorced resolve improve ure of his financial condition as seeking modification of child iswho anticipated, placed heavy had permitted make dis- him; and that he had sustained a covery according Rules of *3 significant material and downward his former wife’s income Civil Procedure condition, warranting in financial a reduc- and circumstances. The district in of child support tion the amount he court, order, effectively insulated the by pay. The required to father re- discovery by former from wife quested that the court: interrogatories by the means or of written previous “1. alter the Revise and award taking deposition. We conclude that of her figure of child to a reduced that the by district court the effect of the order appropriate given is Plaintiffs De- and oppor- father to from an was foreclose fendant’s financial circumstances.” meaningful tunity pretrial dis- to make evidence. We reverse of relevant On October father’s First court and remand the order of the district Interrogatories Request Combined in accordance with proceedings for further by Production of Documents Defendant opinion. Frederick was served W. Cubin mail upon the attorney. wife’s From our exami- The divorced on March parties were interrogatories nation of we these conclude two Custody of their children was primary purpose that the was to discover subject to reason- to the mother awarded changes in regarding the financial by the father. The rights able of visitation circumstances of the wife and the needs of pay in was child subsequent to the children date of the per each the amount of month for $300 10, 1982, on divorce. November years, period child of five and after for a Objection the wife filed her of Plaintiff to pay per that month for each $400 he was to Interrogatories First and Re- Combined age child reached of 21 until that quest De- Production Documents obligation or This im- was married. was Cubin, fendant W. in Frederick which she posed stipulation par- pursuant to requested asserted the information that ties. any meaningful discovery would not lead to 23, 1982, On the father filed a litigation in connection with the between Modification, pursuant Petition for parties, requiring that fur- her to sup- which he the child requested nish the documents would be in port provisions contained unduly oppressive.1 burdensome and Judgment alleged Decree. The father In the meantime the father served a No- that his financial circumstances and wife, Deposition upon tice to Take no- substantially materially to earn had ticing deposition her taking of for De- changed date of di- 3, 1982, Denver, Colorado, cember he where particular vorce. In averred that he had responded she The wife responsible had become resided. with a remarried and pursuant Motion his wife and minor for Protective Order two W.R.C.P.,2 children; living 26(c), that the increase cost of Rule which was filed in interrogatories pending 1. We did not the action is note that these in which or alter- comply natively, relating with the of Rule Uniform deposition to a on matters state, Rules Wyoming, Courts of State of of the District taken within court in the number because their exceeded thir- deposition district is where the to be taken ty- justice requires protect party person annoyance, from W.R.C.P., 26(c), provides part: 2. Rule embarrassment, oppression, or undue burden "(c) —Upon by a Protective orders. motion expense, including one or more of the discovery person from whom had; following: not be shown, sought, good and for cause appeal perfected This has been the district court on November 1982. 1983. The asserted in her motion that the wife and Decree. subjected scheduling The statement of the issues found expense
to an undue burden and
and was
father’s
brief
is as follows:
taking
oppressive,
depo-
and that the
sition and
of documents re-
“A.
quested
would not lead to
meaningful discovery
litigation
be-
“DID THE TRIAL
ERR IN
COURT
OR-
parties.
hearing
tween the
on this
THAT
DERING
PLAINTIFF WAS NOT
30,1982,
motion also was set for November
REQUIRED TO
THE IN-
RESPOND TO
it
at which time was combined with the
REQUEST
TERROGATORIES AND
hearing
objection
interrogato-
on her
FOR PRODUCTION OF DOCUMENTS
held,
hearing
ries. The
was
but it
BY THE DEFENDANT?
*4
recorded,
nothing
and the record discloses
respect
with
to what occurred.
“B.
23, 1982, the
On December
court entered
“DID THE TRIAL COURT ERR IN OR-
provided
its
that the wife was
Order
DERING THAT PLAINTIFF WAS NOT
required
respond
interrogato-
to the
not
REQUIRED TO RESPOND TO THE
request
for
ries
docu-
THE
HER
NOTICE FOR
TAKING OF
father,
by
ments
and that
filed
she was
DEPOSITION?
respond
not
for
taking
deposition.
The order is
regard
silent with
to the district court’s
“C.
rationale
its issuance. Under the cir-
“DID THE TRIAL COURT ERR IN OR-
cumstances, however, it is a fair inference
THAT DEFENDANT DID
DERING
ground
denying discovery
that the
was
THE
NOT PRESENT EVIDENCE TO
upon
based
the contentions of the wife in
A
COURT WITH RESPECT TO
objections
protective
and motion for a
IN HIS FINANCIAL AND
CHANGE
order.
MEDICAL CIRCUMSTANCES SUFFI-
Although
prosecute
the father
A
CIENT TO WARRANT MODIFICA-
order,
appeal
an immediate
this
from
TION OF THE DECREE OF DIVORCE
interlocutory
was dismissed because
THE PARTIES BY REDUC-
BETWEEN
denying discovery
orders
are not final or-
THE
SUP-
ING
AMOUNT OF CHILD
1.05,
appealable
ders
under Rule
W.R.A.P.
DEFENDANT IS CUR-
PORT WHICH
After remand of the
to the district
case
REQUIRED
RENTLY
TO PAY?”
hearing
court the
on the father's
present any co
The father did not
August
held on
modification was
gent argument
authority
respect
denying
A
Decree
argu
third issue in his brief or at oral
father’s
for modification for the
In
rule
ment.
accordance with our usual
reason that “the defendant has failed to
the issue of the suffi
prove
change in
we will not discuss
a substantial
circumstanc-
ciency
justify
of the evidence to
a modifica
es from the date of the Decree to the
tion,
present
treating
time”
entered on
instead
that issue as waived.
court; (6)
(2)
being
discovery may
only
had
that a
after
sealed
that the
be
conditions,
court;
specified
including
opened only by
(7)
terms and
of the
(3)
designation
place;
research,
of the time or
that the
a trade secret or other confidential
may
only by
discovery
discovery
be had
a method of
development, or commercial information not
other than that selected
only
desig-
in a
be disclosed or be disclosed
(4)
seeking discovery;
that certain matters
simultaneously
way;
parties
that the
nated
into,
inquired
scope
of the
or that
specified
en-
file
documents or information
matters;
discovery be limited to certain
envelopes
opened as
closed in sealed
to be
be conducted with no one
directed
the court.”
designated by
present except persons
change
justify
argument
could
a modification in the
We have no brief
from
mother,
appear
appeal.
support.
ruling
who did not
for child
respect
court with
the dis-
proceeding
In a
instituted
efforts inhibited the
support provisions en
of child
developing
regarding
any evidence
fi-
decree the
compassed
a divorce
nancial circumstances of
ex-wife.
upon
moving party to
establish a sub
occurring
pertinent statutory pro-
stantial
circumstances
original
provide
visions
as follows:
Wyo.,
Harrington
Harrington,
v.
decree.
20-2-113(a),
W.S.1977:
Mentock,
(1983);
Mentock v.
granting
“In
a divorce
annulment of a
(1981);
Wyo.,
v. Book
Booker
marriage,
may the court
such dis-
(1981);
er, Wyo., and Rubel
position
appears
as
of the children
most
ing
Rubeling,
expedient
for the
and beneficial
well-be-
decrees,
judgments,
like other
Divorce
are
ing of the children. The court shall con-
res
judicata with
issues which
competency
sider
the relative
both
upon
presented
were decided
parents
custody
and no award of
shall be
at the time of
parties
gender
made
solely on the basis
proceedings. Ayling Ayling, Wyo.,
parent.
On the
Salmeri,
P.2d 1054
Salmeri v.
parents,
revise
the de-
Heyl
P.2d 1244
care,
concerning
custody
cree
Heyl, Wyo.,
P.2d 28
If the
*5
the children as
maintenance
the cir-
of
prevail upon
moving party is to
a
parents
the
and
cumstances
the ben-
of
necessary
it is
that an
requires.”
(Empha-
the children
efit of
sis
opportunity
afforded to
demonstrate
added.)
of the parties
how the circumstances
have
20-2-116,
W.S.1977:
of the
changed
alimony
“After
a decree
original decree.
party
allowance for a
or children and
in other jurisdictions
The courts
appointment
after a
for the
decree
of
that evidence of
have held
the
trustees
hold
property
to receive and
parents
subject
circumstances of the
children,
party
for the
use of a
the
discovery upon
a
the
time,
may
court
from time to
on the
support provisions
established
a decree
parties,
of either of
revise
of divorce.
ex rel.
v.
State
Hoffman
and
decree respecting
alter
(1968);
Mo.App., 428
Campbell,
S.W.2d 904
alimony
amount of the
or allowance or
Mont.,
Hughes
Hughes,
v.
685
situation, he admits the record
compared to
come
fails
parents as
of both
cumstances
origi-
regard,
his contention in that
at the time
in existence
those
her in-
it does not reflect what
nal decree:
because
time of the last
come situation
at the
sought involves
“When the modification
child,
previous modification.
custody
question
“
given paramount
must be
child’s welfare
‘Likewise,
that the hus-
it is not shown
Laughton
Laughton,
v.
consideration.
fact, appellee
band has less income.
1093, 43
supra Wyo.
[71
suggests
nominally
his income was
in-
it is im
A.L.R.2d
].
creased.’
provides that “circumstances versed; the Order that the ex-wife is not in connection parents” is to be considered respond interrogatories to child with a request of documents refusing allow the father support. relieving responding according .to discover relevant for the taking relating changes in the fi statute reversed; and the is remanded to ease his ex-wife since circumstances of nancial proceedings district court further con- decree, divorce this opinion. sistent with At the same its discretion. court abused the ex- permitted the district court time ROONEY, Justice, concurring. to make Chief
wife father, though affairs of the even agree majority I with that said in the jus objected. The interests of opinion want I do but to note that not afforded parties that both tice requirements consider additional financial evi opportunity to discover relevant similar remarriage, itself, sufficient to mod- dence, of the trial court and the discretion ify the divorce decree. manner. should be exercised a balanced way knowing have no whether We
discovery efforts of father will or will produce helpful to evidence which is of his
him satisfied, however, support. We are relevant to
that because such evidence is