Hinckley v. Hinckley

HINCKLEY, Henry James (Petitioner),

Appellant HINCKLEY, Appellee

Brenda Lee

(Respondent).

No. 90-46.

Supreme Wyoming. Court 5, 1991.

June Davidson, appellant. Cheyenne, for

Sue Nelson, appel- Cheyenne, L. Robert lee. THOMAS, CARDINE, MACY

Before LANGDON, GOLDEN, JJ., and Judge. District THOMAS, Justice. case whether an question is made di-

award of Social rectly to children because of Social Security disability of their father must be against unpaid support pay- credited support obligations. future ments and lump sum trial court ruled that paid to the children Social not be cred- under a federal statute should and, fur- against unpaid ited ther, credit future child that no obligations made. The would be court also held no material had been demonstrated adjustment amount justify an would divorce awarded Ancillary questions presented are decree. concerning part respect with to the needs husband ex-wife and children and income of the attorney fees. propriety of an award agree rulings by attorney except for the award was not attorney fees. The award establishing the rea- supported evidence charged as sonableness of fee judgment en- by our rule. The order and in all by the trial are affirmed tered attorney respects except for the award fees, which must reversed. father, sets forth the appellant, appeal to issues on be: unqualified monthly Social "1. Whether awarded, Disability divorce, fa- of their post the benefit law, disability, con- as a matter ther’s pay- satisfaction of child stitute decree. required by the divorce ments unqualified monthly “2. Whether agreed in violation awarded, Security Disability payments reasonable incurred divorce, post par- for the benefit of the enforcing other his or rights. ties’ minor children because of their fa- At the separation time the agreement disability ther’s total constitutes a mate- into, was entered the father’s only income change rial of circumstance so that disability was his pension from the Veter- monthly disability payments constitute $1,377 ans Administration of per month. support satisfaction of The previously had been receiving required by the divorce decree. benefits, Security Social but he had waived “3. lump payment Whether a sum those in go order to prior school. Both $14,103.44in Security back Social disabil- to, after, divorce, the father also ity payments for the children for the two received from the Veterans Administration year period preceding the award should monthly children, a small benefit for his be credited support to back child arrear- which he forwarded to them. ages especially support pay- when child In November of a Social year ments for the period same two were hearing examiner found the father to be (except current for a shortage). $100.00 disabled. began 100% Social then “4. Whether the Court failed to allow providing monthly benefit to the children appellant properly discover evidence marriage. This benefit was in the regarding the children’s needs and ex- per amount of by May $584 month 5 of wife’s income situation. A lump 1989. retroactive sum award of “5. Whether an attorney’s award for approximately $14,000 was sent to the improper appellee since failed mother, as custodian for the children.1 On present establishing evidence the rea- 19, 1988, May the father filed a for sonableness thereof.” appointment of a conservator mother, appellee, The as states the issues manage the on behalf of the chil- in substantially the way same as the fa- petition, dren. he nominated a cor- ther. conservator, porate but he also volunteered parties The in this case were married on to serve in capacity. At the time the August 11, 1973. In November of filed, petition was the father on served the father injuries suffered serious back interrogatories mother a set of and a re- duty while on active with the United States quest documents, production for which Despite Air Force. surgical proce- several requested information about income following injury, dures the Veterans expenditures and finances and for the chil- Administration declared the father to be objected dren. The interrog- mother to the disabled 1977. The father 100% then production atories and the retired from the United States Air Force grounds irrelevant, im- began to receive Veterans Administra- material, beyond scope of the is- tion benefits. The father and the mother Subsequently, sues. the trial court entered by were divorced a decree January entered an compelling response only one 19, 1983. The divorce incorporated decree interrogatories requiring separation agreement signed by par- requests production two of the ties, required which pay the father to documents be honored. through the clerk of the court in the amount A peti- month little less than a month after the $150 for each of appointment his two children. The child tion for pay- of conservator was filed, begin ments were to January 1983. and at the same time the mother separation agreement provided filed, The responded petition, also to that she terms, action, that if either should violate its divorce a “Motion to Find Defen- $14,103.44, precise 1. The exact amount that the mother received for aas but his citations to the by the children figure. is not established the record. record do not The decision figure approximately judge husband indicates a letter the trial states that the amount $14,000. $14,040. The husband's brief states the amount received was fa- issues asserted Judgment two Complaint for Contempt, first dant Medical and Other ther concern the effect Support, of Back Child Bills, Attorneys Fees.” In that fu- disability payments Motion the father’s alleged that the fa- fa- pleading, mother ture support pursu- pay had failed to Security pay- ther that the Social ther contends the court the divorce ant to the order of satis- be considered as ments either should case; care to maintain medical had failed fying obligation for future child children; and had failed to money due from they replace because certain medical debts or that the mother’s him under the decree pleading, In her of divorce. money a substan- receipt constitutes in- requested also mother tial and material in circumstances proceeding. the by bringing curred in justify the reduction of that should counterclaimed, request- then did not support obligation. trial court among things, that the Social ing, other arguments, and it accept of these either his account to the paid benefits on suspend modify the refused to either any against arrearages be set off children obligation father’s for future child might be due from in that child against his future him and also be credited argu Turning first to the father’s support obligation. pay ment the Social that 14, 1988, mo- wife serve to July the father filed a ments made to the should On A our proceedings. satisfy support, two for child tion to consolidate the authority intervening pleadings Wyoming then were re pertinent number of review of 2, 1988, point when the was prior filed before November veals no case which this consolidating trial court entered an directs attention to raised. The father our the conservatorship proceeding and jurisdictions that have decisions from other in the divorce case for proceedings pending obligor for child to permitted an 29, 1988, July of trial. On purposes of satisfy obligation through payment purposes of a hear- were consolidated for government. The father by the benefits compel A discovery. to ing Andler, on motion particularly relies v. Andler in the all of the issues case was trial of (1975). 217 Kan. and, May after the submis- held on Andler, obligor, dis- who became arguments parties, sion of written entry prior to the of the divorce abled court, 2, 1990, its January entered decree, per month ordered $160 Finding “Judgment Defen- and Order after the support. One month for child Contempt and Denying dant/Petitioner entered, the ex-wife divorce decree was judgment That and or- Certain Motions.” Security disabili- receive a Social started to request of husband for a der denied month ty benefit of $221.10 conservatorship; found that husband disability. the father’s of children because ma- had not demonstrated substantial or Supreme Court held that The Kansas circumstances; change in denied his terial had satisfied the father’s disability benefit of the modification amount from obligation each month support; found the husband to be began those ex-wife to receive the time the support payments in the arrears responded to the con- The court payments. 1, 1989; May amount the benefit constitut- tention that the wife medi- awarded reimbursement for applied not be “gratuity” ed a which should expenses had cal and marital debts she saying: father’s paid; and awarded her Congress seen fit “The States has United husband the amount place government the federal $2,799.60. The trial court also found that mem- role insurer order to afford contempt the husband was in for failure protection force the bers the work comply original with the divorce decree. against future dis- security of insurance judgment appeal This was taken from ability. The fundamental nature and order.

9H Security system cipated is a form of insur- should the court for modifi- reducing unilaterally Bene- cation rather than every ance in sense of word. insurer, payments. high-risk think “We it a adven- paid governmental fits out ture for action to take it policy of insurance for which the under a court, interpret upon himself a decree premiums, are no more paid insured has particularly continuing view the acces- paid by a gratuitous than benefits out Redman, sibility of the court.” 521 P.2d Andler, company.” private insurance pertains at 587-88. same rationale 538 P.2d at 653. If permit this instance. we employed in The rationale Andler has obligor to make a unilateral modification of by a number of courts to been invoked support requirements in the divorce justify credit for Social decree, that would divest the trial court of obligor’s paid to or on behalf of an chil pre- its discretion to determine whether its Maddox, See, e.g., dren. Binns v. 57 Ala. vious order of should modified (1976); App. 327 So.2d 726 Potts v. particular in accordance with the circum- (Iowa 1976); Potts, 240 N.W.2d 680 Horton 20-2-113(a), stances of the case. See § Horton, 177, 132 S.E.2d 200 219 Ga. (June Repl.); W.S.1977 Burnham v. Annotation, (1963). generally Right to Burnham, (Mo.App.1987). 743 S.W.2d 568 Support Payments Credit Child for Washington aptly explained court has Security or Other Government Social in principle way: the this Child, Payments Made 77 for Benefit of disability resulting “The entitlement 5(a) (1977). These cases A.L.R.3d 1315 § Security changes are to Social condi- premised, part, least in appear to be at parties tion of to be considered a equitable concerns that arise when a non proceedings give modification but do not parent custodial sustains a substantial re rise to a modification or deduction with- earning capacity duction because of by out affirmative action the court for Norman, disability. v. some Todd 840 necessarily not determinative. are (8th Cir.1988); Gibson, F.2d 608 v. Gibson may independently be (1981). Mich.App. 110 313 N.W.2d 179 interim, wealthy; may, or he in the have that, acknowledge in an instance in We pri- property. inherited Benefits from obligor has disabled af- which become public systems may vate or retirement entry support ter the of an order for child payable him. have accrued and become work, receipt and is unable to of Social short, affecting many developments In by Security benefits the children of the parties may the economic condition of the previous obligor may support render the permit have occurred which would not question inequitable. order is whether warrant a modification of obligor unilaterally we should allow the deducting the extent of the Social Securi- apply that are re- Social benefits ty dependent for children from benefits ceived his children to fulfill his obli- support ordered in a decree of the child gation. precedents Wyoming au- Our Chase, 74 Wash.2d divorce.” Chase v. pur- thority are antithetical to the course (1968). 444 P.2d adopt sued the father. We the rule that receipt hold that the of Social receipt payments from of Social Securi- Security by the children is one benefits ty by obligated the children of one court factor to be considered the district change support may constitute a of a making its determination as to whether giving justification rise to change of circum significant, material for a modification of the de- stances has occurred that is sufficient cree. par justify modification of a non-custodial Redman, In v. 521 P.2d 584 obligation Redman Burn ent’s See ham; Gerlich, (Wyo.1974), espoused principle we 379 N.W.2d 689 v. Gerlich Marriage an Robin (Minn.App.1986); who seeks to reduce indivisible In re of son, (Colo.App.1982); support because of the fact 651 P.2d 454 Chase. order of 1315. In Annot. 77 A.L.R.3d generally that some of the children had been eman- See already the child at a time when he was disabled to receive credit receiving obligation as his income a disabili- support Social obligated make from the Administra- ty Veterans payments, duty tion of month. That benefit has payments has an affirmative those years; it order. not decreased over instead modification of seek Newman, only that, fa- Burnham; v. 451 has increased. Not but the Newman See (Iowa 1990). income increased the time ther’s has since N.W.2d 843 the divorce he also receives because now anticipation adoption our Security. time from At the rule, the trial argues the father proceeding, the an in- of this father had should have modified his month, $2,300 per which no come change for child based federal taxes It is true could collected. chil occurred circumstances that when receive that the children now more than began to receive the Social dren at the time the divorce awarded the fa benefits. The trial denied decree, but the father’s income has been rule is ther’s for modification. Our There enhanced as well. has been no to modi that the determination whether condition; physical change father’s fy an for child lies with divorce, he was disabled before the 100% court, sound discretion he still is disabled. these Under 100% and that determination will not be court’s circumstances, say we cannot that the trial grave discre except disturbed abuse of grave its dis- court committed abuse of prin legal or for the of some tion violation legal principle cretion or violated some Scaling, ciple. Scaling v. substantial, holding no ma- that there was (Wyo.1991); Esponda Esponda, would terial of circumstances that v. Man Manners obli- justify modification father’s ners, (Wyo.1985); 706 Booker v. P.2d 671 gation support. for child Booker, (Wyo.1981). 626 P.2d 561 The bur assigned to den is to the who seeks father third issue that support obligation to es have the modified lump payment presents relates to sum that a substantial or material tablish of Social benefits that his children change in circumstances has since occurred received after determination was made entry Nuspl, Nuspl the decree. of the father’s entitlement to benefits. 341 Manners. lump sum of some was re ceived from the Social Administra this, In a fact that case such payment as a tion retroactive for some two to children become entitled receive Social unpaid for children. years of Security benefits is not the exclusive factor urges The father this court to credit this ruling trial to consider against as a payment past-due set-off petition for modification. A de in support and medical health and termination the amounts of child premium reimbursements that the surance in an appropriate that are instance which court found he owed. sought due modification is requires analysis applied The same that for consideration we children, ability crediting payments against future the needs of the those obligations applicable to those and his for child is father contribute needs so, ability credit responsibility respect to do and the to the claim for a against arrearages support. in child That the mother contribute those needs retro- responsibility Nuspl. analysis to do so. leads to the conclusion that See case, court, spective In of the would Manners. modification presented, the evidence that was reason in order to receive credit sup- ably payment against past-due that no could have found there was such a similar ability port. diminution the father’s to make some states follow rule, payment. credit refused in these cir- month child has been $300 See, agreed payments precisely to make cumstances for that reason. The father those Moritz, 368 N.W.2d 337 e.g., retrospective Moritz v. would foreclose the modifica- Fowler, (Minn.App.1985); tion of way. Fowler v. in this (1968).2 244 A.2d 375 stat- Conn. Our turnWe now to the father's claim incorporates retrospective a rule of ute no that the failure of the trial compel court to support. modification of child Section 20- interrogatories answers to certain of his 2-113(a), (June Repl.), pro- W.S.1977 compel production and to of certain doc vides, pertinent part: uments constituted interrogato error. The “ *** request production ries and related to petition On either of the income, employment, assets, wife’s may parents, the court revise the decree assets, to the children’s and to the wife’s care, concerning the custody, visitation expenditures on behalf the children. maintenance of the children as the The father now claims that answers to parents circumstances of the interrogatories these were essential to the of the children requires. Provi- preparation of his case for modification of respecting [i.e., sions maintenance support obligation. agree with the support] may be only as to modified that, one petitions when for modifi accruing installments support, cation of child normally discovery subsequent to the for modifica- respect should be allowed with to the as except agreement par- tion sets of the other and information added.) (Emphasis ties." relating to the needs of the children. Fail also, Parry v. Parry, 766 P.2d 1168 permit ure such has been held (Wyo.1989). The record contains no evi- to be reversible error. See Cubin v. Cu any agreement modify dence of the fa- bin, (Wyo.1984). We do not past ther’s recede from our in Nuspl; decisions Man application Because lump sum his ners; or Cubin. prior support children received to that obli- judgment, In our the facts in this case gation retrospective would amount to a sufficiently distinguishable are from those modification of obligation, it is in Cubin that hold we there was no reversi- Accordingly, forbidden statute. we af- ble error in this instance. We note first firm the decision of the trial court that held interrogatories the father to be in respect arrears with production were filed in the case in which pay his to in the conservatorship sought. fact, the was In 1, amount of May as of 1989. they 19, petition May were filed with the on pertains The same respect result with to objection 1988. The of the wife to those against a claim of set-off the medical ex- interrogatories request production, and penses due from the father. The divorce 13, 1988, ground filed on June was on the required carry the father to medical irrelevant, immaterial, they were and insurance on his minor children. The fa- beyond scope the of the issues in the con- so, ther failed to do and the trial court servatorship responded action. The father charged him reimbursing with to the wife answers, compel again with a motion to premiums the for health and medical insur- action, 21, the conservatorship on June paid. ance that she had No 14, evidence can 1988, July 1988. On he filed another sought be found that the father a modifica- seeking motion to consolidate the divorce pay tion of his to health actions, and conservatorship they and and were premiums medical insurance for the chil- purposes hearing consolidated for of a on and, had, 29, dren even if compel July he the statute also his motion to 1988. On Slightly arrearages government different formulations of this rule due to received 2. Newman, may be found in Newman v. 451 pay children must show that failure to 843, (Iowa 1990) (father N.W.2d not entitled Chase, willful); Chase v. 74 Wash.2d was not 253, to restitution of Social benefit for time 145, (1968) (trial court had 149-50 period ments); support pay- in which he made child arrearages deny to credit discretion due.) Gerlich, Gerlich v. 379 N.W.2d (Minn.App.1986) (party seeking forgiveness of tures, Inc., (Wyo.1982). Par- the court entered August the discovery only of this issue in the to with re- subject is ties are entitled the wife to answer the appeal, requiring spect the that are to to those matters relevant following interrogatory: subject pending the matter involved the 26(b)(1), W.R.C.P. In this accounting action. Rule provide an as to

“11. Please instance, trial could constituting underpay- reasonably the court monies received questions benefit have the and the ment of Social determined that by you requests production as the same relates to the received related to may be evidenced minor the wife the needs assets of and children’s children] [the by bank statement.” conservatorship were relevant to the not requested. Fur- action in which required production of: The order also thermore, reasonably the have could reflecting Any all “4. documents questions concluded that those any other which trusts or instruments production did lead to relevant evi- not minors, you Christopher or or Jessi- the the dence in the divorce action which ca, may equitable real inter- have a or premised relief the sole claim for was est.” the availability of benefits. addition, the order the wife to Accordingly, the the we affirm refusal of furnish: compel trial to the other answers accounting An as to mo- “7. itemized questions objected that were to and to com- by you constituting nies received under- pel production the other documents security pay- payment of social objection made. which was Christopher ments as the same relates may presented by be evidenced The final and Jessica as bank issue physical propriety statement and other doc- father relates to the the award attorney uments.” His court. argument is that this award cannot be sus sought While the was lack of evidence es tained because presented compel discovery motion to was tablishing that fees were reasonable. action, conservatorship the Order on above, separation agree As we noted Compel cap- Motion Production that, parties provided ment if either probably tioned the divorce action. This terms, any violated of its of the divorce and reflects the consolidation agreed committing the violation conservatorship proceedings purposes attorney par reasonable other hearing compel. motion ty enforcing rights incurred However, questions posed the other trial, agreement. under At the mother produced, sought relating matters to be following testimony took the stand the wife and the income of income of respect to her was elicited children, were not relevant either the fees in this matter: proceeding or the conservatorship hus- “Q. you attorney to incur Have had in divorce band’s counterclaim the action. bringing action and defend- change this The basis for circum- ing Hinckley that Mr. the motions stances that the father claimed in the proceedings brought against you? course of the divorce was the to the entitlement of children Yes, “A. I have. change benefits. Since the of cir- “Q. you I’ve going I’m hand what way, cumstances was this circumscribed and marked as Petitioner’s Exhibit 20 justified denying

the trial was I guess, time I Plaintiff’s Exhibit—this sought discovery in this that was instance. I’m going change know. this don’t you 20. Can tell Respondent’s Exhibit Generally, question of whether representing you who’s Court been interrogatories are to be re answers to litiga- during the entire course quired is within the broad discretion tion? Inskeep Inskeep, trial court. v. 752 P.2d “A. Mr. Robert Nelson. Stanley Mauch v. Struc-

“Q. you demonstrating tell the Court on the basis fee was Can that the reasonable. representing case, been upon which I have UNC Teton. In this there was no you, hourly charge? testimony presented or other evidence respect to the of the dollars an hour for reasonableness attor- “A. It’s a hundred ney charged. fees that twenty- out of and a hundred courtroom must attorney five dollars in courtroom. reverse the award of fees as an abuse of discretion trial court in “Q. occasion to you Have had review light applicable of the rule of Respondent’s just 20 that I’ve law. Exhibit you? handed to judgment trial court’s and order is Yes, “A. I have. except portion affirmed for that of the “Q. what it Tell the is? Court judgment awarding attorney and order “A. The total of the fees that statement the father. The award of spent I have case. on this attorney fees is reversed. “Q. you Have involved this case been CARDINE, Justice, concurring part beginning?

from the dissenting and in part. “A. Yes. I “Q. opinion concur in the you Do whether or not the above insofar as know represented work that is on this bill the trial court sup- held that accrued child actually performed? port owing was due and and refused to modify Beyond this, retroactively. I dis- “A. Yes. sent and would reverse and remand for “Q. you know that? How do proceedings further as outlined below. signed “A. Because I’ve checks. “Q. Right. talking work, opinion I’m about the its states: not the paid. checks. I know it’s been I “We adopt receipt the rule that the you want to know if think I did the Security by from Social work? obligated children of one Yes, “A. I do.” support may constitute of cir- justification giving cumstances rise testimony There was no other made re- petition for a for modification of the de- garding the amount reasonableness of Maj. op. cree.” at 911. the attorney fees to be awarded. agree adopted by I with the rule the court. adopted has Wyoming the fed Having adopted having and recog- this rule eral “lodestar” test for determination nized the facts of this case as a basis for reasonableness of fees. modification, approves the court the denial Exploration Teton Drilling, UNC Inc. v. discovery because it is said the motion

Peyton, (Wyo.1989). Larsen, conservatorship was in the Stanbury (Wyo. P.2d 349 1990). petition case rather for modifica- requires The lodestar test than the that two (1) tion petition modify factors be considered: whether the fee ease. The charged represents product application conservatorship of reason were con- rate; (2) able hours times a reasonable judicial economy It solidated. seems that whether of discretionary ap other factors simple mandate that fairness would plication adjust should be considered to appellant right have a to discover all of the Teton, upward fee either or downward. UNC might facts bear P.2d at 595. who is for modification have 77 seeking an has the award of fees burden of decision on that on the merits. providing proof of the reasonableness of Accordingly, judgment I would affirm Homes, Inc., his fee. See Miles v. CEC indicated, to the extent reverse the order Jones Land & denying discovery, and remand further Bank, Livestock v. Federal Land 733 P.2d proceedings. (Wyo.1987). In order to meet that bur proof, present den of must the claimant not billing reflecting an itemized the time rate, must be but there evidence

Case Details

Case Name: Hinckley v. Hinckley

Court Name: Wyoming Supreme Court

Date Published: Jun 5, 1991

Citation: 812 P.2d 907

Docket Number: 90-46

Court Abbreviation: Wyo.