*1 ' sellers, money deposit there is no earnest
to forfeit be shared with the broker. letter, its decision the district court summary judg-
directed that the motion for
ment J J and Miller should be
granted summary the motion for
judgment made should Prudential be
denied. The district court then stated that
“plaintiffs complaint as to all prejudice,
should be dismissed with each
party attorney’s to bear its own costs and court, final
fees.” The order
however, specifically does not to any refer
disposition against of the cause of action remand,
the sellers. On we direct the dis- ambiguity
trict court to correct this and to
reconsider the issue of reasonable costs light attorney’s opinion. fees in of this
IV. CONCLUSION
Consideration remains fundamental of a creation valid contract. In this
instance, the failure to consider- promissory
ation note resulted promissory
invalid note and the failure to executory
create a valid contract. “Noth-
ing agreed agreed.” until may all is It maxim, apt description
be a but it is an happened only paper
what exchanged
hands in attempt this to sell a ranch. affirm, modified,
We and remand. MADISON,
Douglas Appellant G.
(Plaintiff), Lynn MADISON,
Donna Donna n/k/a (Defendant). Lynn Eisele, Appellee
No. 92-168.
Supreme Wyoming. Court of
Sept. 23, 1993.
GOLDEN, Justice. In this we must determine wheth- increasing er the district court erred based on an aver- four-year age of his income for a au- time and whether a district court has award, thority a child adding to it an “escalation clause.” We affirm.
ISSUES Appellant Douglas G. Madison raises these issues: in providing I. Whether court erred that Mr. Madison’s child obli- increased, gation could be and not de- creased, automatically year each based gross his solely on income. A. Whether in not erred expressing 20- required amount as W.S. 6-304(a).
B. Whether the annual automatic support adjustments improperly side-step showing a mate- required change of circum- rial substantial factors and the consideration of stances obligor’s than the other incomе. Whether the court erred estab- C. lishing support provision a child Mr. automatically if increases $51,238.20 but does not income exceeds Mr. if provide for automatic decreases is less than that Madison’s income amount. court erred in not
D. Whether the Mad- providing fоr reimbursement to Mr. if the level ison increased particular year $1,270 month, his income supports lesser child Woodard, Burke, Sigrist Wood- Rhonda requirement that the E. Whether the P.C., Bishop, Cheyenne, appel- for ard & automatically increase lant. (with adjusted gross on based income) adjustment to arrive at net Wiederspahn, Lummis Lathrop, Diane M. by the error court. P.C., Collins, CO, appel- Liepas, Fort & lee. basing erred in II. Whether the court on
appellant’s child THOMAS, MACY, C.J., average income over Before TAYLOR, period. CARDINE, four-year GOLDEN and JJ.
Appellee (Madison) right Donna Eisele submits Madisоn to claim accorded both dependents pur- this restatement the issues: children as income tax poses. correctly applied I. Whether Wyoming the State of law of 7, 1990, August petition Eisele filed a On
averaged Mr. Madison’s income over seeking adjustment reviеw and of Madi four-years. obligations. support son’s child After year bitterly disputed more a dis Whether, upon II. based the facts of covery, most of which was directed at de case, properly this the court established termining was, what Madison’s income he range child with automatic agreed support to increase his child to $500 adjustments. spe- annual is Said per per month child and to contribute $75 necessary comply cific to the extent to per to per college month child fund. 20-6-304(a) with W.S. and the formula § accepted. оffer That was not On Decem provided equitable par- in is that neither 13, 1991, ber the district issued an ty petitioning is from the court precluded opinion letter which concluded Madi adjustments pursuant Wyo- for experienced son had an increase in income ming support guidеlines. which warranted modification of his child III. properly Whether estab- obligations, support though in even his an increase in support lished when year dramatically year come varied from to Mr. Madison’s income increases. and his income was somewhat diffiсult to properly IV. Whether the court consid- quantify. The district court set his child “phantom ered income” the issue support for the two children at a determining Mr. income $1,270 minimum of per month and a maxi payments. and subsequent $2,000 (the per mum of month minimum figures and maximum for one child are
FACTS $1,330, respectively)1 and . The mini $965 figure mum what based on complaint seeking Madison filed a di- net, average, court found to be Madison’s vorce on December 1982. The four-year period annual income over a approxi- have two children who are now time. The maximum level was to be mately years A age. decree dependent upon reached future increases in 11, 1983, of divorce entered May was on earnings upon Madison’s annual based his provided for division of the marital gives net income.2 The record nо indica property, custody that Eisele would have required pay tion if Madison has been an children, pay and that Madison was amount than that. The final order per total of month as child for $700 of the district court reduced judg to a their required two children. He was also This ment. followed. provide health medical insurance pay the children and to one-half of medi- DISCUSSION expenses cal not covered insurance. An decree, 28, 1983, significant amended entered on part, June In Eisele’s action was altered provisions engendered by some of the decree and changes Wyoming law days 1. providing The order on modification reads: in 30 certified statement Defendant, his accountant Plaintiff Commencing January Plaintiff shall submit that additional amount to Defen- pay shall as child children a two * * * support. adjusted dant This $1,270. monthly minimum amount of [ejffect support amount shall remain for 12 days prepared Within after Plaintiff has his months. no event the child shall any given year, taxes for he shall equal an exceed amount to a total of Defendant a certified his ac- statement from setting gross in child countant forth his in- come from his Form 1040. This amount shall apparently spouse’s per- 2. The district court exclude future based this income. The ad- table, i.e., justed centage gross on shall be reduced 33% individual whose monthly Any pays to arrive at net incomе. $51,238.20 net income over income is over $900 for (or multiplied by 30%). shall be 30%. With- children two concerning child which occurred Wyo.Stat. 20-6-304(a) and 1990. § provides: (Supp.1992) guidelines. 20-6-304. Child expressed
(a)
in a
shall be
amount
following guidelines:
in accordance
shall be determined
*4
only modify
the
еrred
specific
Madison contends
district court
court will
that
dollar
expressing
support
in
the child
in a
upon petition.
not
amount
The district court
“specific dollar amount.”
The district
jurisdiction
support
of
retains
matters
specific
express
did
the
dollar amount
court
may
petitions
modify the
and
entertain
to
immediately
of
which was
due. The
changed
present
decree if
circumstances
amount of child
set is well within
themselves. This is not a matter of first
discretion,
the
court’s
we will
district
court,3
issue,
impression in this
the
has
but
Ellison v. Walter
ruling.
that
disturb
in
been addressed
detail
numer-
Walter,
ex
680,
(Wyo.
rel.
834
685
Jay
P.2d
Zitter,
appellate
M.
ous other
courts.
866,
1992); Scaling v.
Scaling,
805 P.2d
“Validity
Enforceability
Annotation,
Mintle,
Mintle
v.
(Wyo.1991);
869
764 P.2d
Decree
Escalation Clause in Divorce
of
”
255,
(Wyo.1988).
258
Alimony
Support,
Relating to
and Child
(1983).
4th 830
It is
that
19 A.L.R.
obvious
significant
we must ad
issuе
carefully
district court
reviewed the
the
it was an
of discre
dress is whether
abuse
annotation,
the
cited in the
as well as
cases
upper
tion
the district
set an
court to
It
our
cited at footnote three.
cases
$2,000 per
scale of
for child
support guidelines
mani-
view that the
theory
a
that
based on
presumption
typical
that the
welfare
fest a
might vary upwardly
future. What
the
by the
and needs of children
be met
will
court
was to insert
district
did
given
minimum
levels
clause”
de
“escalation
in the modified
ability
parent. Beyond
that
eаrning
that,
Madison contends
in addition to
cree.
Wyo.Stat.
level,
may, in
minimum
a
its
20-6-304,
district
the language of
re
§
discretion,
award child
consistent
quiring
“specified
that child
in a
be
Wyo.Stat.
amount,”
parent’s
need
with the child’s
and the
abili-
dollar
20-2-113
§
Wyo.Stat.
20-6-302(b)(xi)
contemplates
ty
(Supp.1992)
pay.
thаt
to
§
Mentock,
156,
Macy
3.
of facts
v.
v.
P.2d
160 n. 3
In the discussion
contained in
In Mentock
(Wyo.1986),
Macy,
533, (S.D.1990); v. Studt 639, (S.D.1989); v. Clutter
N.W.2d
McIntosh, 846, (N.D. 484 N.W.2d 848-49 Hillebrand, contra,
1992); v. Hillebrand A.2d 1050-51
130 N.H. EM DEPARTMENT OF WYOMING (1988). Appellant contends that also PLOYMENT, OF UNEM DIVISION not take account averaging process did into INSURANCE, Appellant PLOYMENT of the “phantom income.”4 Our review (Respondent), demonstrates that district record into account all relevant and took available reaching its determination information WYOMING RESTAURANT AS appellant’s income level. SOCIATES, INC., Appellee (Petitioner). judgment of the district court respects. in all affirmed No. 92-129. Supreme Wyoming. Court
CARDINE, Justice, dissenting, with Sept. 24, 1993. Justice, TAYLOR, joins. whom deсree modi- I dissent. The divorce *6 by increasing
fied per month to $700 averaged appel- The
per month. trial preceding income four
lant’s from the $1,270 per as
years arriving at month
appropriate, reasonable averaging, assuming appel-
future effect ensuing is
lant’s income the same years, appellant pay is that will too
four enough years
much in some
others, average right. be just but will dramatically is more
If expected, party either can seek
or less provides. as That is
modification the law opinion The trouble the court’s
fair. approves is that it an escalation clause
here in child provides yearly increases income, upon but an increase corresponding decreas-
does in in- upon in child decrease
es where, in this That unfair
come.
case, will be Thus,
annually. I would affirm the award
of child money. generally er does not receive 4. "Phantom income” is income result- taxpay- ing event from which the from taxable