*1 N.E.2d N.Y.2d 394 N.Y.S.2d (1977); Am.Jur.2d, supra, and 36
§ Moench, Douglas
Bernard E. Cole J. Jr., Cole, Cheyenne, appel- Cole and lant. JESSEN, (Defendant), Kent Rocky Edmonds, L. Cheyenne, appel- v. lee. JESSEN, Appellee Tina Marie URBIGKIT, C.J., Before (Plaintiff). THOMAS, CARDINE, MACY and No. 90-115. GOLDEN, JJ. Supreme Wyoming. Court of URBIGKIT, Chief Justice.
Dec. appeal, presented we are issues
concerning validity by appellant, entered into Kent Jessen (husband), (wife), appellee, Tina Jessen requires very husband to make sub charge” payments stantial “late inwife delayed making the event husband is support payments. delayed He was every pay in these for about ment, ques if made at all. Husband also tions the of the district court to make commissioner conclusions of law. The district court found husband in con for failure to make child and entered a in favor of wife for due child and a substantial amount of late total- purged has not himself of the even the extent support actu the amount of child ally owed. Based on our decision in Con (Wyo.1989), nors v. period remand case for a permit months out standing support payment obligations which, time, if not within that satisfied result in dismissal.
Upon confirmation within the two month period, that the are current computation provided here in, proceed this court will to hear and deter That mine the substantive issue. *2 902 age
issue is child until the reaches of non-enforcement child the a high penalty marries, rate if self-support- to majority, becomes timely made, support payments are not ing, emancipated. or is Said agreement by stipulation had been to be made to the Clerk of the Dis- incorporated an into de- Court, County, Cheyenne, trict Laramie Clearly, cree. had the Wyoming and be in the shall form of accept stipulation par- diction to the the of check, certified or cash. ties, leaving only enforceability now to be begin payment first on the first The shall tested in this May, of like day day first of month each thereafter. raised issues: Defendant is late his child by Is the a creation “late fee” child charge a late fee then an obligee penalty assessment of (ten percent) per day of for the first 10% hence, unlawful and unenforceable? days (five) day per 10 dollars by Is of a the creation a “late fee” shall thereafter be said late permissible support obligee the as- support payment. as large/egregious sessment is so unconscionable? 29, 1985, May petition On husband filed a money judgment, including an Can decree, modify the asking to divorce “late amount for a fee” created force be reduced to the by payment support, of child enforced be per “penalty month and that the * * * calling damages” where “liquidated it paragraph [quoted 8 be strick- above] damage? there is no evidence constituting imposition en as of such Does a court commissioner have the au- penalty working as to be onerous thority to make conclusions of law? hardship on Defendant Other [husband].” issues, particular, visitation counterpoint, In wife the issues states proceeding. raised were How- thus: ever, declined modify the district court Appellant’s 1. Should the [husband’s] paragraph 8 of the Appeal be dismissed based way and no was taken. “Bright Rule” set forth in the case Line Connors v. 6, 1989, petition wife for (Wyo.1989)? cause, order show for and to 2. or not the Court Whether District modify petition the divorce decree. The abused and District Commissioner Court sought compel pay arrearage in finding their discretion that the late $1,855, as well as charge stipulated by and between petition other relief. That was dismissed Appellee [wife] [husband] consent of husband and wife. both was enforceable? On December wife filed another or Commis- 3. Whether not a Court asking motion that husband be sioner make conclu- has the support obligations sions of law? charges in A late the sum hearing disposition The to our was held before facts February 26,1990, parties this case were divorced commissioner on and his are that by 1982. The decree decree on was filed with the district court on provided February response that husband was to per petition, of their one latter claimed he was child, provision mod- minor signing charge agree- into late coerced by stipulation and an entered ified order charge agree- Based ment. 20, 1984, as follows: ment, the commissioner recommended to that husband be
8. That
the Defendant
[husband]
the sum to
of which was
shall
to the Plaintiff
some
[wife]
(Three
twenty-five)
late
charge.
hundred
owed and some a
for child
dollars month
commissioner found that
amount owed
with this court. Al-
at the
tation of Record”
for late
not
month,
though May
11th
has
as of
rate of $325
disposed
in the district
this court
August
allow-
issued an order
the district court en-
*3
in
proceeding
the current
report of
its
based on the
tered
the record on
court to be made
commissioner, and directed hus-
the court
appeal.2
the basis of the motion sub-
$13,275
due
band
mitted,
initially
declined to dis-
to and
and late
briefing on wife’s
appeal
miss the
before
26, 1990,1
husband in
and found
by hus-
that the issues raised
contention
support.
contempt
failure to
judicata
in
were res
be-
band
his
sentenced him to
contempt
citation
litigated and resolved
they had been
cause
County Deten-
in the Laramie
three months
proceeding and
against
in the 1985
provided that husband
tion Center and
he
no
from
took
(a)
contempt by
purge himself of
could
entered at that time.
was
attorney’s fees
for wife’s
costs,
(b) providing security on
and
present disposition of this case
Our
satisfactory to the
non-exempt property
Connors,
The case is remanded to the purging tions the husband’s district court in provisions hereof for two by requiring months from the date of him to make future Actually, problem based on frequently the records of the clerk of 4. A encountered any the district court as available for paid was that husband her January due since a delin- nonnegotiable Normally, checks. the office of quency is shown October cash, only accepts the district court clerk certi- 111,950.00. Nothing about is reflected for fied checks or orders in order to avoid ment in 1984 after the June 1984 problems the insufficient fund in check collec- made and of an amended decree was tion. accomplished in December 1984. may have accrued after appeal was not and should not attempt to function as such. taken. Such an beyond order is our
diction. We are not a trial court and can-