Parry v. Parry

argument provide proper record grant review, in this will

for we 10.05 for

requests pursuant W.R.A.P. expended in de- fees and costs

attorney’s Edwards,

fending 732 P.2d appeal. an Warner, 1068; Osborn Therefore, in

(Wyo.1985). accordance with 10.05, certify that there was we

W.R.A.P. appeal, for

no reasonable cause request Ranch’s for

grant Pine Mountain

attorney’s fees and costs. Pursuant

rule, fees and costs must be reason- Pine Mountain Ranch has attached

able. appellate an of its

to its affidavit brief legal delineating costs and fees

counsel defending appeal. incurred in

$856.27 is a amount to be find this reasonable attorney

charged paid to the to Osborn and

for Pine Mountain Ranch.

AFFIRMED. PARRY,

Philip T.

(Defendant), (Plaintiff). PARRY, Appellee L.

Karen

No. 88-8.

Supreme Court of 5, 1989.

Jan. Vines, Gusea & W. Gusea

James White, Cheyenne, appellant. for appel- Whynott, Cheyenne, P. Philip lee. CARDINE, C.J., and

Before URBIGKIT, MACY, JJ, THOMAS, BROWN, J., Ret.* * June Retired

CARDINE, Court, Chief Justice. District, District First Judicial dollars, ($200.00), sum of two hundred appeal This is an from a district court per per child month. One half of said denying appellant’s order motion for sum paid shall be on day the first of each retrospective modification of his divorce de- month and one paid half shall be on the cree. The issues we must consider in two day month, 15th beginning each on the deciding this case are whether the district day first of September, pay- 1984. Said retrospectively court could the de- ments are to continue until said children respect support cree to child with reach their majority, emancipated are or failing in whether court erred to elimi- residence, leave the Plaintiff’s whichever alimony. nate or reduce last occurs. As each child reaches ma- We affirm. jority, emancipated or leaves the res- 23, 1984, May appellee On Karen L. Par- idence, support said remaining for ry complaint filed a for divorce. For some children proportionally increases so filing time complaint, to the of the the total amount per $800.00 appellant Phillip Parry living T. was in paid month is to the Plaintiff for appellee living York New was support. Beginning the first month fol- Cheyenne. Against the advice of his sever- lowing payment the last support, of child attorneys, appellant al prop- entered into a pay alimony Defendant shall erty agreement settlement appellee with on equal Plaintiff an amount to one half 10,1984. October The mentions (½) military (Em- of his pay.” retirement William, Ronald, four children: Richard added.) phasis provisions and Shannondoah. One later, 24, 1985, Three January months on agreement provides: of the appellant filed a motion for relief from the [appellant] “That the Defendant shall Appellant decree. contended that he had pay Court, to the Clerk of District First support provision misunderstood the District, cash, support by Judicial agreement, and that it was not until he order, certified check money begin- sup- reviewed the decree that he realized ning day September, 1984, on the 1st port would not decrease as each child was month, per the sum of $800.00 with said emancipated legal age. or reached A hear- payment continuing until all the minor ing April on motion was held on [appellee’s] children the Plaintiff’s leave 18, 1985, 9, 1985, May order dated support residence. One half of said shall the motion denied. paid on the 1st and one half shall be paid by the 15th of each month. When 5, 1985, August appellee On filed a mo- all the children have left the Plaintiff’s why appel- tion for an order to show cause begin paying residence Defendant will contempt lant should not be held for not alimony in the amount military of ½ his complying support provision the child pay.” retirement response, appel- of the decree. motion to A decree of divorce lant filed a amend the divorce was entered on Octo- 23, provisions seeking pro 1984. One of a nunc tunc order re- ber of this provision ducing which is similar to the child to two hundred property per per settlement men- dollars month child “until such above, legal age, tioned states: child reaches marries or becomes emancipated.” Appellant otherwise also ORDERED, “IT IS FURTHER AD- alimony or reduc- asked for elimination of JUDGED AND DECREED that the sole tion of “to a reasonable sum.” At care, custody and control of the minor scheduling February a conference held on offspring marriage, of the to wit: Wil- liam, Ronald, Shannondoah, the court asked the Richard and Plaintiff, research the issue of whether it had hereby awarded to the sub- authority modify support provi- the child ject of reasonable visitation would cancel or of the Defendant. The Defendant is or- sion a manner which pay through dered to the Clerk of this reduce the which had accrued filing by agreement sions parties, modifi- reached before filed showing cation. a memorandum let- proper a of a substantial which concluded that the ter with the court change in Id. circumstances. decided issue had not been Retrospective modification is different a hearing was held On If retrospectively matter. a court could regarding appellant’s motion to amend the rights modify party the of a under a decree appellee’s of and the amend- decree divorce incorporating agreement, a settlement the order to show cause. Fol- ed motion for agreement virtually becomes worthless. hearing, lowing the court entered an that development This would violate well-estab- it it that lacked order concluded which Wyoming favoring lished law settlement modify power the De- authority “the or to agreements. Mentock, 156; 638 P.2d Lew- date cree of of the Divorce is, Furthermore, allowing 716 P.2d 347. filing modification” of the Motion such retrospective of modifications divorce de- that modification shall take ef- and “such may crees encourage party default. A filing of of said fect as of the date the might stop payment decide to and allow prospectively Motion.” The court reduced to accrue to a substantial support judgment and child awarded amount, hope anticipation with the and that against sup- the defendant for back child the payments court will cancel the accrued August by portas of which that receiving owed the party. prefer to We a $14,800. time had to The court accrued encourages party rule to which a seek mod- alimony provision orig- of left intact the the ification of a divorce at moment decree the inal decree of divorce. It is from order changes. his financial situation In the appellant ap- that November case, present appellant simply stop to chose peals. required making payments. the willWe first issue will is The we discuss type self-help by not allow- sanction authority the district court had to whether ing retrospective the de- modification of modify retrospectively a decree of divorce cree. respect support. to child We hold support position Wyoming In of his authority.1 that it did not have Gener retrospective has modification of allowed ally speaking, district courts have payments, appellant support cites decrees, including modify provi divorce Wardle, Wyo., 464 P.2d 854 Wardle v. alimony. sions for child See (1970). case, property In that settlement a 20-2-116, 20-2-113, W.S.1977. When a §§ parties, by the was reached change in out substantial circumstances parties subsequently the modified the weighs finality, a considerations of modifi agreement. upheld the district court’s Mentock, cation is v. warranted. Mentock by modify decree of decision to (1981). Wyo., 638 P.2d 156 When a decree cancelling support pay- past, unpaid child incorporates agreement, as in settlement ments, distinguished the from one case but case, courts more the instant reluctant agreed, not be- which the had doing so to disturb the because themselves, initial tween their they infringe upon principle of freedom agreement: settlement finality. of contract as well concerns Lewis, Wyo., (1986). 1959 both Wardle v. P.2d 347 Lewis “[S]ince Nevertheless, mutually pro his former wife consented this court has allowed agreed sup- the wife support provi- impliedly would spective modification care, custody, legislature and maintenance This settled visitation issue was 1987 amendment W.S.1977 children as the circumstances of of the parents (June, Replacement) was not in which re- benefit children effect when filed his motion retro- quires. respecting maintenance Provisions spectively modify the divorce decree and there- only payments may as to or in- be modified disposition govern fore our of this does subsequent accruing stallments pertinent part: case. amendment reads in The except for modification "(a) parents, petition of On the either added.) (Emphasis parties." concerning may revise court forego port (1985). the children and the benefit P.2d 671 See also McMillan v. McMillan, child-support payments from Wardle Wyo., (1985); 702 P.2d 1279 forego and that he would to Heyl Heyl, Wyo., (1974); 518 P.2d 28 during have of his children Tanner, sum- Tanner v. Wyo., 482 P.2d 443 Thus, implied agree- mer months. (1971). reviewing whether or not there parties, subsequent ment of the to the was an discretion, abuse of the standard decree, prevented rights vested from ac- apply is whether or not the trial court (as cruing party to either far as the could reasonably have concluded as it did. concerned). The case parties only are State, Martinez Wyo., complexion takes on a (1980). In the instant the trial court different one where husband in de- considered resources, financial by failing monthly to make ali- his career in Force, the Air fault extent mony support payments.” Id. at appellee which able care for (Emphasis added.) herself. Under the terms of the divorce alimony payments the Wardle, might we allowed the court to cancel begin 1991, any until modification of arrearages only because alimony provision present at the time subsequent there was an to the might premature. appears, however, be It original approach decree. This was con- that the trial court here considered the policy encouraging sistent with our set- alimony provision contained in the settle- agreements honoring tlement freedom ment and decided to leave it of contract. Because there is no subse- appellant persuaded intact. The has not us quent agreement appel- the instant that the court’s decision was upon unreasonable misplaced. lant’s reliance Wardle is was, under the circumstances. There suggests further that the dis- therefore, grave no abuse of the trial trict retrospec- court had the discretion, court’s and its decision must be tively modify the divorce decree because left undisturbed. prior 1987 amendment specifically the statute did not § AFFIRMED. prohibit retrospective modifications. We brief, disagree. In his concedes THOMAS, Justice, specially majority any that the rule is that modifica- concurring. tion of a only divorce decree relates agree I can with the result reached future, i.e., either entry from the time of majority the court in this case. While the decree modification or from the date Wardle, v. distinguish Wardle chooses to for modification filed. (Wyo.1970), and that distinc- persuaded this rule is most con- may justified tion in terms of a strict gruent with our case law. In our decidendi, persuaded of ratio I am not view view, the 1987 amendment 20-2-113 § Wyoming lawyers, perhaps our merely codified the common it law as exist- might judges, not have made a dif- district ed in We hold that the district prediction ferent based dictum properly refusing court acted to retro- Wardle. spectively modify the divorce decree. quoted by majori- In addition to that The second issue we must decide Wardle, ty, following language from refusing is whether the trial court erred in 855-856, pertinent: 464 P.2d at seems appellant’s alimony to eliminate or reduce 20-66, W.S.1957, that, payments, begin provides which are scheduled to “Section following payment first month the final after a divorce decree with allowance for children, support. may The trial court had discre the wife or the court provisions tion to of the divorce time to time revise and alter such decree grave respecting of that the amount of the allowance. and absent a abuse Specific discretion its decision will be left undis authorization is contained Manners, Wyo., turbed. Manners v. 706 section for the court to: 1172 ‘“ * * * Urbach, Wyo. 207, respecting any “In 52 73 any decree Urbach make 953, 889, 960, [1937], P.2d 113 A.L.R. might court which such of said matters pointed Chief Justice Blume out that our original in the action.’ made have all district courts administer law—the agree there are “Counsel both law, law, statutory princi- common a stat- have other states which five 961, ples equity. At P.2d he con- 73 20-66, statutory similar to our ute grant power statutory cluded the to make trial court for the authorization provide for the and care of chil- respecting al- after any decree dren in a divorce decree connection with it or children which for the wife lowances powers abrogate equitable does not original action. might made have existing independent of the court there- 1277, 1293 in 6 A.L.R.2d “The annotation eq- of. It follows from this that of the five 8), that four (§ sets forth powers uitable of the court likewise exist wording in their states which have other having unpaid to do with an action language we have statutes similar child-support installments. (Massachusetts, Mi- 20-66 quoted from § Duffy Duffy, “In 19 N.J.Misc. Wisconsin) follow chigan, Minnesota [1941], it was ar- A.2d where may cancel that a trial court the rule gued became vested as (Ne- remaining state arrearages. The accrued, said, they the court were braska) settled in considers the law well law, powerless the court would be that installments of that state principles in apply equitable the adminis- accrue; past- they become vested statutory jurisdiction tration of its over judgments; become final due installments alimony maintenance. It went on to and no to can- and that courts have apply eq- say, if the court could pay- amount of accrued cel or reduce the obliged principles, it to uitable would Clark, 139 Neb. ments. See Clark agency, im- as a mere administrative act 661, 663 297 N.W. [1941]. being potent prevent processes is from to that since position take the “We inequity employed in furtherance of his former wife 1959 Wardle and both injustice.” and impliedly agreed mutually and consented that, years, say in earlier It is fair support the children would wife litigation paucity appellate given the child-support forego the benefit court often articulated Wyoming, he and that payments Wardle way principles by of dictum because forego right to have would through the law opportunity to structure during summer months. of his children also holdings was limited. It is direct par-

Thus, implied agreement of the practice has not note that fair to ties, prevented subsequent to the opinions disappeared from the completely accruing par- rights from to either vested language quoted our court. Given (as are con- ty far as provision above, the fact that cerned). The case takes on a different 20-66, W.S.1957,which the court from § only the hus- complexionfrom one where upon, appears relied still § failing to make is in default band (June I satis- Repl.), 1987 am W.S.1977 support payments. monthly in- may have been there well fied that support payments were in which stances equitable principles, it is within “Under If that were adjusted retrospectively. to leave prerogatives of a trial court true, necessary the make it would are, they past as far as parties where 20-2-113, W.S.1977 amendment to § the court payments are concerned—if (June quoted Repl.), which so equitable and to do considers it majority opinion first footnote jeopardiz- done without if that can be adjust the law. order to If of the children. ing the welfare disposition of theory I do concur While apply were light particularly power- right, would be the courts ‘vested’ 20-2-113, W.S.1977 amendment equity. apply less that, (June Repl.), I believe in order contrary any re- orders assure undisturbed, it would be far better

main that the effects of this decision declare only, specifically and to prospective contrary dictum in

disavow the Wardle. REDLAND, Appellant

Matt Eric

(Defendant), Wyoming,

The STATE (Plaintiff). Appellee No. 87-199. Counsel, Appellate D. Naylor, Julie Weerts, E. Steven Sr. Asst. Public Defend- Supreme Court of (argued), appellant. er 6, 1989. Jan. Gen., Joseph Atty. B. John Meyer, W. Renneisen, Gen., Sylvia Deputy Atty. Lee Gen., Hackl, Atty. Jerry Sr. Asst. Williams, Intern, Prosecution As- Student appellee. (argued), Clinic sistance C.J., CARDINE, Before THOMAS, MACY, JJ., URBIGKIT BROWN, J., Retired.*

CARDINE, Chief Justice. by and convicted was tried vehicle, by jury aggravated homicide 6-2-106(b). appeal On violation W.S. court, preju- he that he was contends jury an instruction diced erroneous statement was an incorrect which agree, judgment entered law. We must be reversed. evening of November

On Tensleep Bar Ten- went to Kay Mey- sleep, Wyoming, and met Sharon During evening, course ers. amount appellant consumed a substantial 2:00 the fol- 1:30 and of alcohol. Between Meyers Ms. lowing morning, appellant and private go to a Tensleep Bar to left driving to party out of town. While June * Retired

Case Details

Case Name: Parry v. Parry

Court Name: Wyoming Supreme Court

Date Published: Jan 5, 1989

Citation: 766 P.2d 1168

Docket Number: 88-8

Court Abbreviation: Wyo.