Dorr v. Newman

however, failed to hold, that Short testified, the dece- We which, was as Mr. Hall interpretation court’s that the district taxes on the show payment of dent’s prejudiced his substantial 1-12-102 not to of court’s decision § farm. The district showing prejudice to rights. Absent recovery of those amounts is allow Short’s reverse. rights, we will not evidence. The substantial by substantial supported (Wyo.1989); P.2d 171 Ely, testimony cancelled Weisbrod presented Halls (Wyo. Bauer, Anderson v. claim that the dece- supporting checks their 1984). $1,007.99 voluntarily expended dent $1,000 for a satellite

property taxes Affirmed. dish. (1977) 1-12-102

Wyo.Stat. § letter, the district decision

In its that, Wyo.Stat. pursuant

court stated (1977), the court must dis 1-12-102

§ testimony

regard any uncorroborated concerning a made statement Short (Plaintiff), DORR, Appellant Mark asserts, con and the Halls decedent. Short cede, court misconstrued that contends that the NEWMAN, formerly 1-12-102. Short also Peggy J. J. § (Defendant). plain error. Dorr, Appellee court’s error provides: 1-12-102 Section No. 89-74. against by or In an action or suit Wyoming. Supreme Court of any incapable cause is

person who trustee, against a testifying, byor or Jan. administrator, executor, heir or other incapable of person representative of judgment or decree found-

testifying, no testimony shall be

ed on uncorroborated party whose inter-

rendered in favor of person incapable are adverse to the

ests trustee, executor, ad- testifying his or

ministrator, representative. heir or other suit, if the adverse any

In action or such entries, testifies, memorandum

party all incapable party

and declarations capable, he was testifying made while issue,'may to the matter

relevant

received evidence. parties that the district agree

We with the erroneously concluded Short’s

court dis testimony should be

uncorroborated

regarded. Construc See Consolidated

tion, Smith, (Wyo. Inc. v.

1981) (discussing application 1-12-102). does not 1-12-102 Section

§ the uncorroborated

specify the source of sustain a

testimony which is insufficient to person incapable of tes

judgment against a representative. It

tifying person’s or that judgment cannot

simply that such a states testimony.

be founded uncorroborated Tay- Daly Daly, Anderson &

John M. lor, P.C., Gillette, appellant. for T. D. Omohundro and Randall

William Buffalo, Palmerlee, of Omohundro & Cox appellee. THOMAS, CARDINE, C.J., Before GOLDEN, JJ., and URBIGKIT and ROONEY, J., Retired.

URBIGKIT, Justice. (Dorr) appeals Mark Dorr

Appellant increasing alimony pay- order an amended wife, Appellee Peggy former ments his (Newman). de- We affirm the J. Newman except require district court cision of the portion of the final order of that deletion consequences tax which alters the alimony award. increased questions whether: * * * ordering I. the court erred alimo- alimony when additional additional pled by defendant. ny was not * * * there has been a sufficient II. justify a change of circumstances the decree. modification of * ** supports an the evidence III. alimony. increase * * * supports the evidence IV. conveyanc- finding of fraudulent court’s by appellant. es Dorr, here of economic distress Newman, legal re- effect formerly Peggy J. litigants. The district by both conceded whether: phrases * * * task presented the unenviable court was there has been sufficient I. fair resolution to this divorced providing a justify to the change circumstances litigation. years of venomous couple after decree. of the divorce modification * * history litigation of the to quick A review *, appropriate under the stan- II. puts into context the issues this case review, the con- appellate record dard of presented to this court. support to sufficient evidence tains alimony as ordered increase in Newman married Mark Dorr District Court. Ashley Dorr was born to in 1976. Nichole * n * 8, 1983, February family in the District commit their 1981.2 On III. Court alimony in uncontested divorce any by increasing they granted were ted error settlement, appellee’s petition. part As of the divorce response to the decree. partnership was estab- a Dorr-Newman appropriate- generally addresses for: lished granted by the relief ness of partnership purpose of the shall be contempt answering in the Newman court engage owning, in the business of attack, evalu- petition. To answer that we operating selling property and such following if can be modified ate may other be usual or inci- businesses decree; if that entry of a divorce modifica- thereto, further dent or such businesses requested; if modifi- properly tion partners may agree as the from justified by change circum- cation was time to time. stances; permitted if that modification was of the trial within the sound discretion Overcast, 780 P.2d 1371 Overcast Cf. court; finally, sufficiency of the evi- (Wyo.1989). When times in Gillette boom dence. This evaluation is hindered to some any civility to this tenuous vanished so did in degree of a wide difference because co-existence. Dorr remarried and then the litigants opinion between about litigants really began fight. Essentially, “facts” of this case.1 this case May In Dorr filed a motion to modi- unwilling an ex-husband to make involves fy up the divorce decree and to clear good previously agreed property set- on agreement. the child terms of visitation payments tlement which resulted July That motion resulted in a order of fashioning remedy by ad- district court 1984, clarifying custody In and visitation. justing alimony payments to meet the rec- June, Newman, residing young Ashley with ognized needs of the ex-wife. Colorado, petitioned county court in Denver, change divorce has drawn on time and Colorado for a of name for This judges daughter. district court and their Not informed advance resources three change daughter’s of his name from Ash- five law firms. We decline invitations presented ley Ashley court Nichole Dorr to Nichole New- implicit the briefs to this man-Dorr, super-arbitrators reweigh a motion for an order to become Dorr filed 1988; 1988; Perhaps twenty-eight 1. this footnote can be characterized as and November capacity wise or otherwise.” See Kost v. Lacking "word to the various exhibits. the sheer Thatch, (Wyo.1989). Dorr’s brief what Dorr discussed determine from Newman single include a in statement of facts does not record, rely unjustified in the we on the reference for the facts related. Newman record responds: proceedings record of and facts otherwise stated specifically by Newman which direct us to the appellant’s statement of the case refers testimony oral and written exhibits. documents which are not in the record. Additionally, court’s de- neither of district Further, refers to the statement of case letters, although liti- cision discussed both proceedings regarding numerous child visita- gants, Attach- are found in the record itself. custody, and child which matters are not tion relevant to the appellate brief does ment of documents to the subject appeal. proper make a record. not seven-page Newman then offers a statement of very the case with detailed references to the divorce, Following Newman secured restora- Transcripts provided record. include sessions tion of her maiden name. 24, 1984; May April August This new course ment and being assigned to the motion for until his decisions tempt proceedings Newman tempt in March 1987 as petition support: decision order A lull in their tion of tion for timony and evidence is, the Plaintiffs Motion previously has considered as a Property tlement wise into a Decree of Divorce fication of certain sums Court entered its Order statement of as follows: Court which duced agreement on October show cause. stipulation in late 1984 The Defendant IT 1. That 2. That September dismissed with of divorce, fully IS May agreement provided for the on the Newman having considered said in this matter as responded with a litigation resulted decree, be, Agreement pleadings. THEREFORE ORDERED Contempt as filed herein. more defined modify Settlement, supplemental advised negotiated and 14, subsequent that This issue was counsel, 4, 1986, February litigation battles parties entered into involving then with this in the prejudice. and the same which by denial of petition for modifica- case; regarding the Peti- then “resolved” when which this Court presented appeal and prejudice and petition property settle- child visitation. petition for con- 21, 1985, intro- as owed after an active premises, in a new and it 8, 1983, Supplemental Property property and agreed upon. incorporating joint being Dorr filed parties terminated is taken. evidence, entry the Dorr and her is from exhibit, quanti- hereby lasted other- judge finds that con- Set- this had tes- in previous Orders of this Court the amount of travel payable on ties’ by reason fendant tempt of the Orders of Defendant has ary sonable $17,500 the and was ordered payment, none of Orders of this Court. amount of HEREBY the sums paid to the Defendant April contempt sums CREE Court and the sum of 8% said dant the sum of extension of one 8, 1988, pay from 4. The Plaintiff has not 5. THEREFORE, THIS COURT DOES 2. The Plaintiff 1. The 3. The Plaintiff 1987 to date $17,500, Plaintiff's from 8, 1983, agreement of October ^[*] contempt by paying to the Defen- being By reason of the Plaintiff’s and interest February for failure to expenses THE FOLLOWING: plus interest any and as owed to the of 1987. ORDER, February thereof, Plaintiff, ^[*] $717.65, $9,500, together with February of said the which sum was due and necessary, actions. incurred $1,659.25 8, 1983, $9,500 $17,500 plus interest at previous and year or until ^[*] the Defendant the sum which the Plaintiff has at due may purge himself of ADJUDGE sums payment. shall Mark J. all as the 8, 10% pay the Defendant at lost February within 30 to date. to the Defendant attorneys 1983 to date ^[*] contempt 8% Defendant, pursuant this which together Orders of this interest at wages 21, 1985, February allowed Dorr, is in or the Court, ^[*] AND DE- February February result are rea- 8, 1987, days of fees Febru- in the to the with con- par- said ^[*] De- the 8% an of of in under the Plaintiff to the Defendant immediately The Plaintiff shall 4. Building” of paragraph entitled “Office assign the Defendant unto transfer Agree- previous Property Settlement Defen- to which the all stocks and bonds ment, being in the amount said sums pursuant to the is entitled dant $8,000 and costs in plus attorneys Divorce, fees including without Decree of $1,500, which was due limitation, Exploration the amount of stock. the Kee February assigned 1987. into stock shall be Such into the De- Defendant and name of the addition, origi- pursuant to the 3. In. alone. fendant Agreement in- Property nal Settlement pay to the shall If the Plaintiff into the Decree of Divorce corporated $9,500 within 30 sum of matter, agreed pay Defendant the Plaintiff failed and New- above, judicial resolution the Defendant That days provided man, having lump none of the sum received attorneys own fees bear her shall peti- $717.65, payment, by June filed a second $1,659.25 pro- expenses of contempt. hearing further tion for A vided, however, Plaintiff that should the July again filed order in days, held without within said 30 fail to said sum shall, payment, applica- a third together without success with then the Plaintiff year $9,500, July tion was made about a later on said pay to the Defendant said $1,659.25 petitioned which she attorneys in the amount of fees expenses $717.65. in the amount of holding enter Mark this Court its order contempt in- failure convey her for his to com Defendant Court, that ply to with of this in the former residence orders parties' terest pay Peggy Plaintiff, Plaintiff Mark Dorr be ordered to provided shall, convey simultaneously, grant Newman sum of $500/month support in favor of maintenance and until such time mortgage said residence secure has full all amounts owed addition as he the Defendant present provided a re- him as in this or the wife from Plaintiff's Court[]’s 13, 1987, May pay such that he to of her interest and der of lease homestead may Peggy attorneys that Newman all fees which interest as said wife have other bringing or with has incurred in this matter superior to interfere she would and mortgage petition, interest of the Defendant this for such to Court may contemplated in the Decree of other and further relief as Court as and [j]ust proper.[3] deem Divorce. Dorr, Keller, [sic], petition present Bentley initiated as & It is this that known Peka $4,000 salary per of month. litigation. Following hearing at a a of held course Plaintiff, 8) The who is a Certified Public August succeeding argument a 1988 and presently partner, Accountant and former 3, 1988, opinion of held November letter employed by salary his old firm at an annual January 8 and 1989 were written November $20,000. of February an order and entered Plaintiff, 9) pay unable to The while appeal which is taken. from this settlement, property trav- Defendant has provided: The order Vegas Disneyland to Las eled with Court all evidence The has considered parties’ minor child. matter, presented in counsel this statement of 10) pay The failed to or ar- Plaintiff has fully pertain- to all and is advised as matters payment range for the of the settle- hereto, ing thereon as fol- obligations negotiated and based finds he himself ment which eyes lows: in the the Court a and has of made 1) Defendant, (former- accounting Peggy transfer The Newman fraudulent of his business Dorr), following an effort Peggy necessary, without consideration in to avoid ly found it matter, payment of his settlement obli- entry in to of the divorce gations. her continue education. 11) requires The Defendant additional ali- 2) nursing The Defendant attended school mony pay adequate secure to her debts and to degree. Denver a R.N. in and obtained housing parties’ for herself and minor 3) under The attended school Defendant child. tight and has accumu- financial circumstances 12) changes have in There been substantial financing her education. lated debt in warranting parties the circumstances of the Dorr, 4) Plaintiff, pay the The Mark did not of of modification the Decree Divorce and agreed, property settlement which he alimony to the increase of to be Defen- and, result, to as a the Defendant was unable dant. purchase parties’ herself and the house for IS THEREFORE ORDERED Mark A. IT per- minor child and is still unable to secure Newman, formerly pay Peggy shall J. Dorr manent accommodations. Dorr, Peggy J. the sum of Three Hundred 5) insuf- The Defendant’s current income is ($300.00) per alimony in addi- Dollars month purchase ficient to allow her to a home. alimony currently payments he is tion to the 6) disposed of his interest Plaintiff pursuant paying her to the Decree Divorce Accounting no con- Dorr Associates for 8, 1983, February this matter on [in] entered paid upon termination a sideration but was $7,500 alimony payments additional to com- said 1, 1988, consulting fee. on December and continue on mence 7) through January present day The Plaintiff’s wife assumed month the first 31, each firm, position now with the Plaintiff’s old February 1987. The di- divorce, Dorr on Dorr

Initially, at the time alimony provided for dur- in a busi- decree had expected to remain vorce Newman $1,050; $1,150; ing divorce. The 1985— partnership after their 1983 of ness 1984— $1,350; $1,250; an amended the then fol- failed to be followed and for effort 1986— mutually adopted arrangement months in lowing seventy-three successive for partnership provide liquidate their per month. The a reduced amount of $350 assignments of the interest Newman’s was scheduled to occur reduction and: schooling so when Newman finished her position purchase in a agree that the amounts that “she will be parties arising pay- out of Peggy Mark to home” with the owed No. Action the Decree of Divorce Civil ment then to be made. spe- County, Wyoming, Campbell court has Since March the district “Office cifically paragraph entitled efforts New- been faced with continued $8,000.00, Building”, be the sum of unpaid attorney man to fees of collect interest, which sum shall be including $1,500; agreement partnership dissolution in the De- payable provided due and $8,000; payment provi- and the residual agrees Divorce. Mark further cree of $17,500 with interest sions of the decree time, Peggy, at that that he shall originally agreed her have funds as for $1,500.00, in- which sum is an additional herself purchase the home for expenses reimburse tended to litigative history as well Ashley. This attorneys has incurred fees she argument as Dorr’s about Decree of Di- matters since the these finding conveyance fraudulent court’s entered. vorce was texture of the action taken related to the $9,500 to obligation was addition This court. Dorr is a Certified by the district original agreement and decree: (C.P.A.). April Prior to Accountant Public parties to assure

It is the desire of 15, 1987, partnership un- practiced he in a approxi- she will have the defendant that Dorr and Associates. He der the name of Thousand Five mate sum of Seventeen of concern about “expelled” because ($17,500.00)within four Hundred Dollars de- trying to collect the divorce Newman (4) Divorce years the date of the as an He first worked cree indebtedness. prop- from this Decree herein is entered prior part- independent contractor for his she that at such time as erty, in order month, $2,500 more re- nership per at in a schooling her she will be finishes $20,- employee at about cently as a salaried position purchase a home. to 1987, present In his per year. 000 June C.P.A., wife, Dorr, $27,- also a became Barbara payment of Consequently, lump a sum relinquished interest) exchange for his payable partner a became due and (plus 000 A. Peggy the failure of Mark beginning J. Newman for that IT IS ORDERED FURTHER 31, 2003, 1, through January February pay settlement 1993 Dorr to the sums for Newman, pay Peggy to J. by Mark A. Dorr shall agreed by this Court on him and ordered Dorr, formerly Peggy denied, the sum of Six Hun- 8, 1983, J. finding February ($600.00) alimony, per as month dred Dollars maintenance and set- cannot enforce that this court support. through contempt powers. The tlement its in- ORDERED that all IT IS FURTHER Peggy have J. Newman would Court finds that paid ordered to be crease in right reduce the in the income of shall not be includable order Peggy judgment judgment on the and to execute and not be deductible J. Newman according to law. Dorr, being the intention of this Mark A. it each of the ORDERED that IT IS FURTHER designat- payments shall be Court that all such attorneys parties pay fees and their own support alimony, ed as maintenance arising out of incurred them costs Peggy be includable in the income shall not of Contempt and Enforce- for Order of Petition Internal under Section 71 J. Newman Payment and Petition for ment of Court Order Code, deduc- and are not allowed as Revenue Support filed herein as of Maintenance Reve- the Internal tions under Section 215 of July on or about nue Code Mark A. Dorr. added.) (Emphasis peti- that the FURTHER ORDERED IT IS contempt filed tion for an order 1178 Blanchard, 770 P.2d v. Blanchard merged then firm as first

position, and State, v. (Wyo.1989); Martin 720 P.2d 227 Dorr, Pecha. Bentley & today as continued Grosskopf Grosskopf, (Wyo.1986); 894 $4,000 per month as paid Dorr is Barbara Chorney v. (Wyo.1984); P.2d 820 677 $2,000 per month and Dorr is partner (Wyo.1963). Chorney, 383 in the ac- Dorr’s role ex-partner. as an signifi- did not apparently firm counting proper, alimony modification With expulsion part- as a after his cantly change three technical next face appropriate, if we employee. re-admission as ner remedy properly re questions. Was against payment strategy defensive Dorr’s change of justified by Was it quested? and rea- was well communicated pressure in the deci justified Was it circumstance? his ex-wife and He told both sonably clear. contends made? Dorr’s first issue sion he accounting firm that July petition a member of the motion prayer paying his bankruptcy before file ordered to would “that Mark Dorr be 1988 obligations.4 $500/month divorce settlement Newman sum support” is insufficient maintenance is whether first determined To be alimony. Ad question of increased raise subject modi Wyoming alimony in law ditionally, although a motion for leave entry of the following by the court fication record, in this it is not to be found amend issue is decided. This divorce decree. at the by the district court was addressed Yates, (Wyo.1985); 1252 Yates v. 702 P.2d hearing August held on close of the Buckler, P.2d Wyo. Buckler v. 1988: Lonabaugh, Lonabaugh (1949); objec- May DALY: I make the MR. (1933). Those cases Wyo. the Court is I understand where tion? can occur that modification also establish object any coming I want from. arrangement was estab if the even time. The mo- to amend at this motion Yates, parties. by agreement of the lished after the —at the close of tion is made 702 P.2d at the close of his evidence the case not improperly made at this time. and is modification, similar The basis I overrule it. THE Go ahead. COURT: change in support, is a changes child to Manners, v. circumstance. Manners 706 Later, judge court said: the district (Wyo.1985). The decision rests P.2d 671 I going order and will I am provided the court sound discretion of you if never enough alimony that order does exist. change in circumstances that a settlement, you if nev- pay this 671; Buchler, 202 Manners, P.2d at 706 it, you going are still your pay life er Lonabaugh, 22 P.2d 199. Cf. P.2d pay your because she lived with wife McMillan, McMillan v. child, your you had a di- you, she had in alimo (Wyo.1985). agreement The test for decision you your made own vorce and 20-2-116, revision, sup child Mr. yourself. like it ny W.S. her. You made with Mr. Daly of district involved. Omohundro port, is exercised discretion wasn’t pay you said I will appeal involved. You not be disturbed wasn’t court will you anything to Overcast, I will this and that 780 P.2d clear abuse. absent in our conclusion conjectural later relate answers 4. We do not even allude to finding change justified a bankruptcy court was possible of this district about absolution non-compliance with the from obligation circumstances where it involved of divorce settlement agreement. minimal to payment If this rather provide payment for ex-wife and a residence family a stated income of a with question. tal sum where a law See In re child. This is Messnick, federal resolved, $6,000 per it would (E.D.Wis.1989) month were to B.R. and 11 104 89 might payment cause another 523(a)(5)(B). bankruptcy appear that the Although § U.S.C. bank change with or without payment in circumstances discharge release of a divorce decree alimony to the ruptcy of the so that reduction obligation question, whether the a federal law justified might for original then also be change amount for creates a of circumstances release obligation would obligation period time as the payment such is a court maintenance state suggests Low, Nothing that interim alimo v. 111 S.W.2d 936 continue. law decision. Low state necessarily (D.N.M. be credited on ny payments would (Ky.1989); Danley, 493 In re 14 B.R. achieved, "debt.” 1981). settlement interesting as we An result original in the marriage. you agreement can’t from the included get And out of subsequent a modification. you change it and make decree live with it O’Bymachow, 12 Conn. O’Bymachow orders v. agreement. second The Court 747, you do 529 A.2d de you App. transfer stock and couldn’t certification (1987). nied, 532 A.2d 76 anything can’t do the Court 205 Conn. that. You alimony dropped from the Although to do. you tells $1,350 per per level of month to $350 1986 of alimo We find the issue of modification month, Altman, v. 101 N.M. see Altman ny issue properly presented a contested (1984), funds commit 683 and, hearing pleading when addressed in buy paid. ted her to home were not evidence, for a on the sufficient decision change in Dorr’s circumstance from Lonabaugh, 22 199. We merits. See P.2d original failure to abide settlement change next consider the of circumstance plan only later corrected charging issue abuse of discretion in find providing an court order increase in alimo ing correcting change detrimental ny We to assure alternative solution. by selecting to the circumstance ex-wife determine, as in 22 P.2d Lonabaugh, appeals. which remedy from Dorr now for where the income the father declined Gunter, 187 49 A.2d Gunter v. Md. depression of the national consti because (1946). question We must answer the change in tuting a circumstances for de person’s to com whether a divorced failure alimony, that a fa creased failure of the ply integrated part of the divorce set with planned ther to settle abide divorce change in circum tlement constitutes change ment can also be a in circumstance spouse. stance to the former We hold for alimony. be addressed increased district entitled case that the court was discharge bankruptcy provide a sim cases did, change it that a of circum find as Low, ilar v. answer. Low 777 S.W.2d 936 stance did occur with (Ky.1989). provide Retirement can a basis payment refusals as it to the sched related payment for result of reduction a converse alimony payments. uled In re decline change also of circumstances. (Colo. Marriage Hauger, 679 P.2d 604 McFadden, Pa.Super. v. McFadden Continuing jurisdiction App.1984). exists (1989). 563 A.2d See also reduced expectation5 to enforce the changed employment and ex- income Bjordahl Bjordahl, divorce decree. capacity wife’s found to work consti new (Minn.1981). N.W.2d 817 change tuting a material substantial agreement The divorce settlement Cooper Cooper, 219 circumstances. included funds Newman to decree 64, (1985). 202 361 N.W.2d Har Neb. Cf. buy self-support she a home after became Hardisty, 183 Conn. 439 A.2d disty v. ing. alimony into the Adequate was built result, (1981). only As a find not 307 we parties’ agreement to allow Newman to acceptable legal theory also but sub complete her education. With her edu change of stantial evidence to sustain the independence place, plan cation and in proper for the district court’s circumstance in then followed with a scheduled reduction grante ly discretion in the relief exercised alimony. Newman encountered bore What Low, d.6 777 S.W.2d 936. plan to the no resemblance when she by last concern from the presented problem with a two-faceted Our arises provision in the order agreement non-payment. This taxation attribution alimony change increasing payments: in is an unforseen circumstances employment partnership Marriage, Cal.App.3d ing expulsion, 102 162 his and 5. In re Jacobs' Hester, (1980); Cal.Rptr. 2 Cal: 649 Hester v. Court that does not convince this substitution Cal.Rptr. (1969). App.3d 82 811 by the court were erro- the observations district arguments satisfy do those us as neous. Nor Adequacy 6. of income the additional by his law that Dorr should not abide matter of per alimony $300 month after decreased housing provide support and agreement $1,350 per simply $350 month to is not in family. prior his funds for arguments record. The issue in this calculated Dorr, Accountant, by regard- Public a Certified 1180 alimony from deferred deductibility of alimony in ordered to be increase [A]ll parallel taxable in- gross shall not be includable income and the

paid by this order Peggy J. Newman provision in the income of 26 U.S.C. come § Dorr, by Mark A. it deductible not be mar Although the new law affords being intention of this Court that all flexibility for des partners greater ital far designated as payments such shall be alimony an award was ignation of whether alimony, support maintenance and settlement, not also property income of it does not be includable or authority change 71 of the taxable provide J. Newman under Section Code, Internal Revenue and are not It is designation once the is made. result under 215 allowed as deductions Section court as determin the intent of the district A. by Revenue Mark of the Internal Code able from the text of the entered orders Dorr. taxability status. In re which establishes (E.D.Va.1989). B.R. As McCauley, 105 taxability The issue of of the increased pre-1984 law, applied to see v. Green by alimony was not addressed amount C.I.R., (6th Cir.1988); 855 F.2d 289 Schat brief, appellate although it became ten, C.I.R., Hayutin 746 F.2d v. inquiry during oral subject of comment and (10th Cir.1974); C.I.R., F.2d 462 v. Mills Ameri- argument. The federalist nature of (10th Cir.1971); 442 F.2d 1149 Bardwell v. pow- government renders state courts can (10th Cir.1963). C.I.R., 318 F.2d 786 See congressional intent change erless to Sellers, (Wyo. also Sellers v. in the Internal Revenue Code. defined 1989), Thomas, J., States, concurring part 746 F.2d 319 Schatten United Cir.1984). Serrano, (6th dissenting part. designated alimony The Serrano Cf. (1989), consider- 213 Conn. 566 A.2d created the divorce decree amendment is allocating ing provision decree the statu- recipient and deductible taxable to tory exemption. 71(b)(1)(C) tax payor.7 26 U.S.C. §§

There is a difference between the tax court, where result directed generally affirm the decision of the We payment designated alimony and de- court, conformity district but herewith creed to the tax effect it would have have remand for deletion of tax attribution settlement, property if it was a and the tax provision. present provi- result authenticated 71, changed by the Tax sions of 26 U.S.C. § J., ROONEY, Retired, concurred. in 26 Reform Act of as found U.S.C. 71(b)(1)(B) relating by which discretion § Justice, ROONEY, concurring. Retired designation whether majority of the court has here Comment, provided. settlement is See Tax “just and blurred the distinction between Spouses Bene- Planning in Divorce: Both equitable disposition Act From the Tax fit Reform holding parties” “alimony." (1985) general Willamette L.Rev. 767 for a disposition failure to abide flexibility by the discussion of the afforded change in circumstances to a sufficient Note, Tax Reform Act of 1984 and also alimony warrant a modification of an Alimony Under the Tax Redefinition of pro- is too broad. W.S. 20-2-114 award 187 Act 35 Drake L.Rev. Reform vides: (1985-86). do not understand 26 U.S.C. We divorce, granting “In a the court shall 71(b)(1)(C) change the and ef- nature § disposition property of the alimony make such payment designated a as fect of parties appears just equitable, provisions of the the attribution 26 under respective having regard for the merits provide and 215 which for the U.S.C. 62 §§ payment only decree was entered. See can be con the initial divorce 7. The additional 1279; Yates, McMillan, alimony P.2d 702 P.2d since the district court 702 sidered to be Finkbiner, (10th authority readjust property v. 340 F.2d 878 Cir. Finkbiner would have no 1965). nearly years five after division and settlement alimony for or other “After a decree in which the parties and condition of the children and party a or divorce, allowance for party the left the they will be appointment of a decree for the after acquired property through whom any property and hold trustees to receive prop- imposed upon the the burdens children, the party or for use of party and of either erty for the benefit time, on the may from time to court may decree to either The court children. parties, of the revise petition of either es- alimony out of the party reasonable respecting the alter the decree regard having for tate of the other alimony or allowance or amount of the much of ability may order so other’s respecting the payment thereof and the rents and real estate or the other’s princi- payment of the appropriation and necessary be as- profits thereof as is so held in pal property and income of the party either for signed and set out to respect- may any make decree trust and life, specific sum be may or decree the court ing any of the matters which party.” by either might have made in the action.” property settle- Obviously, whether a only can made But modification equitable be deter- just should ment showing changed circumstances decree. Kane mined as of the date former de those at the time of the Kane, (Wyo.1978); P.2d 172 Warren v. 577 Salmeri, 1244 554 P.2d cree. Salmeri v. Warren, (Wyo.1961). P.2d 525 Rubeling, 406 (Wyo.1976); Rubeling v. rule, judgment is general a final “As (Wyo.1965); Lonabaugh v. Lona P.2d 283 granted as to the relief conclusive both (1933). Wyo. 22 P.2d 199 baugh, 46 withheld, or and as to the relief denied statutory authority for modi There is no entry jurisdiction of the and on its provision con a divorce decree’s fication of subject matter and court over the To use a cerning property settlements. preserved in unless parties is exhausted property settlement failure to abide Hence, by statute. the mode authorized through adjustment court direction of the materially judgment or order any further purposes of alimo alimony sidesteps the judgment nullity, is a varying the first settlements, and it ny and that of pursuant rendered except as it is exception to improper of the is an extension may open- have in the court power which 20-2-116. provided W.S. judicata res vacating judg- modifying, or its own ing, provisions of a divorce Property settlement practice in accord with the ments and Paul, modified. cannot be Paul decree pow- of such prescribed for the exercise (Wyo.1981); Pavlica v. Pav applied has divorce er. This rule been Transfer lica, (Wyo.1978). proceedings.” a modifica obligations alimony ring its Am.Jur.2d, Separation, Divorce and The failure to abide provisions. of its tion (1983). § of a directions is to the judicata of res The doctrine through con corrected should be court upon the judgment decided effect that a tempt proceedings. is con jurisdiction a court with merits case, However, are suffi- there and facts or of that cause of action clusive modifying grounds cient parties as to the litigated, both issues any refer- decree without provisions of the any other action the same privies their consideration ence to or jurisdiction of concurrent or different court material has been a There settlement. CLJ, 693 P.2d on the same issues. CLS position of both change in the financial Curutchet, 677 Delgue v. (Wyo.1985); 20-2-116; Heyl, 518 Heyl v. parties. W.S. 1984). (Wyo. P.2d 208 P.2d Rubeling, 406 (Wyo.1974); circumstances war- statute, changes re- Wyoming has authorized 283. The By case in this increase ranting for alimo- of a decree and alteration vision by de- debt necessary accumulated A are: provides: ny. W.S. 20-2-116 education; securing fendant in her unantic- assets increased the defendant’s assets decreased. defendant; ipated payments by home rental high income-pro- plaintiffs marriage to a

ducing change person; and a in the relative parties whereby plaintiffs

assets

Case Details

Case Name: Dorr v. Newman

Court Name: Wyoming Supreme Court

Date Published: Jan 26, 1990

Citation: 785 P.2d 1172

Docket Number: 89-74

Court Abbreviation: Wyo.