*1 844 State, motion, passage of too much Pearl v. due to the 996 P.2d be affected.”
688, Additionally, under time. 689 6—104(e)(vi)(LexisNexis Ann. 7— legal in this Those facts occurred [¶20] 2003), needy person who is entitled to be a 35(b) contains two rele context: W.R.Cr.P. represented counsel represented is “to be First, provisions. a motion for sentence vant every stage proceedings, from the at of the year within one after reduction must be filed appointment the court of the initial time happened. That imposition of sentence. entry judgment, at which of final until Second, the district court shall determine end, representation shall unless the time the within a reasonable time. That the motion purposes ap- counsel for appoints Wyoming happen. not Rules did of sentence.” peal, correction or modification proce a Procedure do not establish Criminal v. court, to State citing situation, The district dealing
[¶ 17]
for
with this
which
dure
Pierce,
(1990),
183,
1(a)
P.2d 1189
Wyo
246 Kan.
787
case W.R.Cr.P.
dictates
appointment of
Patrick’s motion for
ming Rules of Civil Procedure govern.
denied
stage
not a critical
finding
6(c)(2),
that it was
directly governs
counsel
mo
W.R.C.P.
which
proceedings.
agree with this rea-
We
practice, states that a mo
tions and motions
7-6-104,
by §
there
soning. As can be seen
ninety days of
tion not determined within
2.01(a)
appointment
statutory requirement
for
is no
filing is deemed
W.R.A.P.
denied.
every
In-
post-trial
at
motion.
thirty
of counsel
requires
appeal
that an
filed within
stead,
the discre-
such a decision rests within
days
entry
appealable
order.
Likewise,
Resources,
district
court.
v. Branna
tion of the
See Paxton
L.L.C.
¶¶
man,
require
93,
4-18,
796,
Constitution does
United States
2004 WY
798-
—
denied,
indigent
seeking post-
U.S. -,
counsel for
defendants
(Wyo.2004), cert.
802
Pennsylvania
Finley,
v.
(2005)
conviction relief.
(appli
reverse
jurisdiction to determine Patrick’s motion for It consider
reduction
sentence.
should
ciding that it without to hear was
Representing Appellant: Loretta R. Green Kehl, P.C., Cheyenne, of Buchhammer & Wyoming.
Representing Appellee: Pro se. HILL, C.J., GOLDEN, KITE, Before and VOIGT, BRACKLEY, JJ., D.J. HILL, Chief Justice. (Fa- Appellant, Richard Steele S.
ther), contends that the district court erred ordering Appellee, Lee Anne Steele (Mother),1 only statutory mini- per mum month. Father $50.00 improp- also contends that the district court erly statutory applied the factors is re- quired deviating to consider from the sumptive support obligation, and that it arbitrarily capriciously applying acted govern- contemplated “other factors” ing will affirm. statute. We ISSUES posits these for our Father issues consideration: applied improperly I. district court support obligation as the “minimum” child 20-2-304(b). § Wyo. provided for Stat. alone was in ex- a. [Mother’s] per month. cess $732.00 now Lee Conde. 1. Mother remarried her name is Anne allega- motion on an in- that Mother based her Twenty-five percent [Mother’s] b. wife im- Father and his new tion that both per month. far exceeds come $50.00 overly physical discipline on posed harsh applied improperly II. The district court lived in an and that the children children provided within the factors strict, stressful, overly and fearful environ- 20-2-307(b) a devi- granting *3 appointed was guardian A ad litem ment. support child her ation from custody was A evaluation for the children. obligation. and, although part it not a accomplished § in 20-2- a. The factors listed apparent from the appeal, record on it is the 307(b)(i-xii) or are favor [Father] either that the evaluator recommended record applicable herein. not primary custodian Father should remain the arbitrarily court acted III. The district visitation. and Mother should have additional Wyo. capriciously applying in Stat. and 17, January on Father filed a counter-motion 20-2-307(b)(xiii). § 2003, status in which he asserted that the disparity party’s in the income a. The maintained, except that Moth- quo should be Wyo. fully addressed in adequately required pay support. to child er should be 20-2-304(a). § Stat. that no apparent It from the record is also improperly b. The court district adjustments parties’ to the child were made weighed the financial efforts and achieve- intervening support obligations in the ten the assistance of [Father] ments of with that, applying in the years. alleged Father and mother. his wife by the presumptive child established have con- c. The district court should statute, support amount would governing the obligation legal the and abilities sidered the amount in change 20% or more from what, any, determining devi- [Mother] existing Ann. 20-2- the order. ation was herein. (LexisNexis 2003). po- took the Mother otherwise Mother did not submit a brief or changes cir- sition that while there were appear in this Court. counseled in favor of a cumstances that change in change custody, there was not a AND
FACTS PROCEEDINGS in favor of circumstances that counseled 9, 1993, July By on decree entered modifying original respect decree with to the parties were divorced. Under the terms the support. child decree, stipula- parties’ of the as well as the 25, 2004, February parties the [¶ 5] On tion, designated primary Father was Custody “Stipulated filed a Modified Child part children.2 A of the custodian of the Agreement.” respect to and Visitation With stipulation was that Mother would custody, provided: [parents] agree “The to statutory minimum primary joint legal custody maintain $50.00, provided although the divorce decree care, custody provided residential and control required pay any child that she was not to enjoy sec- liberal [Father]. support. The record not reveal wheth- does ondary parenting rights responsibilities Mother, fact, any paid er agree, as the herein but no less than ten-year during Father interval between provided those in Section herein.” The these the divorce and the commencement of agree sup- parties were unable to on child divorce, proceedings. At of the the time port, presented so issue was primary giver care and was Mother was district court for resolution. employed. purposes making For computation, wage minimum 16, hearing A was held on March to Mother. income was attributed 2004, The court to address 2002, hearing, 31, reporter present was not at the thus Mother filed [¶ 4] On December transcript modify custody, reported it was not and no petition visitation and Mother, respect the rec- primary cus- available. With support which she asked (filed three financial affidavits tody It suffices here to note ord contains of the children. 9, 1990, May October 2. The children were born on $1,271.05; evidence of the financial circumstances of
on November
net
$569.87;
[Mother],
26, 2004,
will deviate
January
net income
downward. Once
16, 2004,
$950.00).
computation
is made it should be in-
net income
March
order,
clearly
cluded
should
also
demonstrates
Father
but
instead
record
per
reflect
downward
has a substantial income.
deviation
$75
is, given
history
month. There
of the
April
On
the district
[IT7]
case, little reason to believe that it is in the
issued a decision letter3 that contained this
of the children to
interests
order the
summary of the evidence it had before it:
paid by
sumed child
amount be
many
The Court takes into consideration
Quite
contrary,
mother.
the Court
factors, primarily
disparate
financial
nearly persuaded
agreement
was
that the
parties,
ques-
positions of the
but also the
minimum,
parties,
should
$50
being requested
*4
tions of what relief was
change
at all.
be modified
This small
by
party.
and what
Here the Court finds
support,
in child
combined with the re-
guardian
the fees for the
ad litem should
quirement
to
one-half of the child cus-
by
appears
It
from
paid
be
[Father].
tody
expenses
inordinately
evaluator
will
payment
complete
any
file that such
is
very
burden
even at that
low
[Mother]
Court, noting
guardian
that the
event.
rate,
appreciably changing
while not
requested
ad litem
the involvement of the
financial circumstances of the father or the
custody evaluator and that
uti-
[Father]
children.
lized his resources to ensure that that was
appeal
The order from which
this
is
done,
repayment
will order
of one-half of
27, 2004,
April
taken was entered on
and it
evaluation, $3,000,
custody
each
departs somewhat from the decision letter
party.
is to receive credit for
[Mother]
provides,
pertinent part,
as follows:
trial,
paid up through the time of
with
$700
THAT the Court finds that
there are
$2,300
remaining
paid
at the rate
changes of circumstances such that child
of
a month.
$100
modified; however,
support should be
The more difficult issue was that of child
court further finds that it is
support. The Court notes that the finan-
sup-
deviate from the
position
cial
of [Mother] has not substan-
port.
tially changed
years.
orig-
over ten
parties
THAT
the Court finds
agreement
parties
inal
was that
equitable
a
stip-
have entered into fair and
because of her financial circumstances de-
resolving
custody,
ulation
the issues of
visi-
appropriate.
viation to
a month was
$50.00
tation and health insurance.
change
There has been no
of
substantial
IT
HEREBY
that [Fa-
IS
ORDERED
that circumstance
than
the most re-
solely responsible
shall
for the
ther]
job
(judging by
cent
affida-
[Mother]
her
payment of the fees and costs
to the
vit)
owed
pays
now
her somewhat above mini-
guardian ad litem.
wage.
pendency
mum
during
Even
proceeding,
jobs changed,
this
IT IS FURTHER ORDERED that the
[Mother’s]
January
equally
responsible
and her affidavit
indicated
shall be
for the
$569
income,
evaluation,
approxi-
custody
of net
and now indicates
costs of the
mately
of net income. The
will
for one-
[Mother]
[Father]
Court
reimburse
$950
income,
paid
find that
is her net
and find
half of the amounts he has
to the
$950
custody
net income is that indicated
evaluator with credit for
[Father’s]
$800.00
only
(though
previously paid
during
pen-
on his affidavit4
there was
[Father]
dency
remaining
much discussion about whether that was
of this action. The
reim-
accurate).
$2,200.00
However,
paid
because of all of the
bursement of
shall be
letter,
3. Neither the
showed a net
decision
nor
district
His financial affidavit
$1,750.70,
taken,
though
his tax return showed much
appeal
court's order from which this
was
However,
higher gross
figure
income.
the later
was attached to Father's brief. See W.R.A.P.
wife,
joint
was
return with his new
7.01®.
well as income from investments.
included
approved
shall be
through
settled
the Clerk
to [Father]
[Mother]
on
trial court in the record
the clerk of the
in the amount
$25.00
District Court
appeal.
day of
beginning on the first
per month
continuing on the first of
April, 2004
attor-
served on Mother’s
The document was
total owed
thereafter until the
each month
May
on
ney. By order entered
judgment
paid in full. No
[Father]
attorney
permitted
was
to withdraw
Mother’s
time.
issue at this
representation of
Mother
from her
Mother.
that the
ORDERED
statement,
IT IS FURTHER
objection
but the
no
made
a substan-
that there has been
Court finds
trial court
not reflect that
record does
that this
change of circumstances such
tial
as re-
approved
the statement
settled
modify
in this
Court can
rule.
quired
case,
primarily that
to include
with reasons
DISCUSSION
em-
employed and has been
[Mother]
great majority of the time
ployed for the
of Review
Standard
Divorce
entry of the Decree of
since the
applicable
standard of
financially responsible
[Father]
repeat
will not
is well known and we
review
dependents. The
additional
for several
Ready Ready, 2003
here. See
detail
sup-
that the
Court finds
¶
¶
WY
per month from
port
is $227.00
*5
However,
at hand
respect
with
to the issue
[Father].
gen
of the more
we include this refinement
that this
IT
FURTHER ORDERED
IS
eral standard:
are reasons to devi-
finds that there
Court
identify
support guidelines
The child
in
support
child
ate from the
judge
the
must invoke the
base from which
principal
The
reasons that the
this matter.
of discretion.
In the absence of
exercise
from
to deviate
court finds
respect
sup-
agreement
an
to child
1)
support
include
presumptive child
the
guidelines
sig-
have a more
port, the
will
disparity
parties;
financial
the
between
an
controlling impact.
nificant
When
2)
overwhelming ability to
the [Father’s]
involved,
support
agreement as to child
financial needs of the chil-
provide for the
however,
weight may
given
be
more
3)
dren; and
that it is in the best interests
agreements en-
agreement.
support
Child
the minor children.
by
into
are favored
tered
IT IS FURTHER ORDERED
the courts.
support in this matter shall deviate to
child
Smith,
(Wyo.1995);
P.2d
41
per
sup- Smith v.
895
amount of
month child
$50.00
Sharpe,
Sharpe v.
902 P.2d
port
also see
[Father].
(Wyo.1995); Wright Wright,
5 P.3d
April
Father
filed
9] On
[¶
(Wyo.2000).
62-63
entitled “Statement of Evidence
document
“...
also have noted
the child
11] We
[¶
Proceeding”
for the
that was submitted
presumption
support guidelines manifest a
appeal pursuant to
purposes of this
W.R.A.P.
typical
welfare and needs of children
provides:
That
3.03.
rule
support
met
the minimum child
will be
proceed-
report
If no
of the evidence or
par-
given
earning ability of the
levels
made,
hearing
if a
ings at a
or trial was
or
Madison,
Madison v.
ent.”
unavailable,
may
transcript
appellant
Further,
(Wyo.1993).
opined:
have
we
prepare a statement of the evidence or
give serious consid-
means
A trial court should
proceedings from the
available
best
support guidelines.
Howev-
including appellant’s
The
eration to
recollection.
er,
blindly
strictly following
guidelines
appellee,
shall be served on
who
statement
nullify
court’s traditional discre-
objections
propose
or
amend-
would
serve
in the interest of
days
tion and would not be
within 15
after service. The
ments
justice
guide-
The
any objections
proposed
all circumstances.
statement and
or
not crafted
trial
lines set out
the statute were
submitted to the
amendments
advantage
any special protection or
approval
give
court for settlement and
(iv)
owing support.
responsibility
are
parent
to a
Guidelines
The
of either
just
children,
guidelines,
support
and do not accommo-
for the
of other
wheth-
that —
otherwise;
or
As a
date to all circumstances
cases.
er court ordered or
policy,
matter of
we are hesitant
to im-
(v) The value of services contributed
pinge
trial court’s historic
on the
discre-
parent;
either
tion.
(vi) Any expenses reasonably related
pregnancy
to the mother’s
and confine-
Houston,
Holtz v. State ex rel.
obligor’s support elderly or disabled this case is agree consistent with the 1993 relatives; ment parties. entered into Lacking a (cid:127) obligor’s (particularly debts if the debts record, complete compelled we are to assume during marriage spouse were incurred complete record would serve to sustain seeking support); findings. the district court’s The record that (cid:127) is available to us clearly does not serve to obligor’s need to channel funds into demonstrate that the (which district court abused its closely may provide held business discretion or that it arbitrarily acted capri or later increased income for benefit of child ciously. However, we take note here that its sought); whom findings superficial were conclusory (cid:127) spouse parent; income of of custodial many Nonetheless, respects. we conclude (cid:127) property the district (e.g., division award court’s order should af to custodial firmed in these parent of circumstances. income-producing property or marital home with low mortgage pay-
ments); CONCLUSION (cid:127) [¶ 19] The order of the district court is payment by obligor direct of certain ex- affirmed. penses (e.g., mortgage on custodial home, tuition, private ent’s school summer BRACKLEY, Judge, dissenting, District lessons);
camp GOLDEN, Justice, joins. with whom (cid:127) payment alimony in addition to child respectfully I offer dissenting this support; viewpoint. my opinion, this modification (cid:127) consequences tax obligor unfavorable order, face, on its comply fails to with stat- property awards; prior utes and case law. The record is more than sufficient holding. this (cid:127) (earned significant income of child Therefore, I would reverse. unearned). Here, the trial
[¶21] court found that changes material circumstances warranted Appeal The Record on change previously support. ordered background With the properly above trial court entered net income find- mind, we ings statutory, must also consider the condition of and calculated Then, appeal. the record on hearing or trial the trial court deviated from portion statutory guidelines reported of this case was not and ordered and no minimum (significantly transcript lower than is available. The statement of the amount). sumptive The record provided by does not con- evidence Father was not accom tain findings lawful for deviation nor does it plished in contemplated by the manner *8 findings supporting contain the conclusion rules. While we not do doubt that it the order was the best interests of the respects, accurate in most accept we will not disparity” children. “Financial between part it as a appeal of the record on because it parent’s “ability ents provide one to and/or was not required by governing done as for the financial needs” of children are not rule. W.R.A.P. 3.03. We are left then with statutory support. reasons to deviate from only sketchy financial data that is These factors can a conclusion that a file, confidential as well findings as the thin child’s best interests are not harmed when made propo the district court. As the legitimate there are reasons deviate down- appeal, nent of this it was Father’s burden to ward from bring complete us a record for review. ¶ Meredith, v. Chancler 2004 WY 86 right [¶ 22] Children have the to share in ¶ P.3d the financial parents. circumstances of both parents courts nor can circumvent Neither right. Inadvertently, this could
this decision concerning notions
jeopardize traditional policy cause some con- law and (1) example: For What tests or stan-
cerns. say, custodial allow trial courts “The
dards money plenty
parent makes So,
family. require will not this this order as much child
non-custodial in the same brack- others (2) Arguably, majority decision
et?” and for one to tell the make easier
will
other, you challenge custody, “If I will do not statutory support.” ask the conforming
Stipulated to law will decrees not by, to, presented and entered uninformed judges.
trial foregoing, please support of (LexisNexis Ann. 20-2-307
review
2003), about discussion Raymond Raymond, v.
(Wyo.1998) we said: where guidelines permit-
A deviation from the only trial
ted when the court makes unjust
finding inappro- that it would be particular in a case
priate follow them specifically
and it sets forth in full the thereforfj [Emphasis
reasons added.]
2005 WY34
Anthony LINDSAY, Appellant J.
(Defendant), Wyoming,
The STATE of (Plaintiff).
Appellee
No. 04-52.
Supreme Wyoming. Court 28, 2005.
March