*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 income. 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 for 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 Madison 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 review 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. offer 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 guidelines. 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 difficult 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 no 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 income. $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 erred 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 issue 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 earning 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. that to § Mentock, 156, Macy 3. of facts v. v. P.2d 160 n. 3 In the discussion contained in In Mentock (Wyo.1986), Macy, 714 P.2d 774 mention is (Wyo.1981), appeared this Court to recommend escalation made of an clause not dissimilar clauses, only escalation but that was the use of However, controversy the one in here. no issue Harrington Harrington, In v. 660 P.2d dicta. respect was raised in that 356, (Wyo.1983), rejected strict we 360-61 Smith, clause. Also v. escalation see Swetich clause, to the terms of an escalation adherence Roberts, 1990). (Wyo. 802 P.2d 869 In Roberts v. specifically disapprove approve did not or but (Wyo.1991) dealt with 816 P.2d we usage. that case make clear that its we did escalation clause had an agreed which very needs children are the welfare and of the stipulated their to in settlement of considerations, along par- important with the (holding that the court was not divorce obligated district strictly ability pay. agreement). follow that ents’ (Supp.1992). Here the district court found diminish the discretion of the district court children’s needs were between the face of $1,587 (Madison’s evidence) (Ei- changed It merely places circumstances. evidence). parent the burden on the noncustodial sele’s genuine change modification if a seek noteworthy It is that for a circumstances does exist. See 3 Melli, et many years living parent’s standard Support al„ Alimony, & Counsel significant determining sup was a factor Award, Enforcement, Modification & Fees — port child, illegitimate for an not for (1991). 22.10 § Wyo.Stat. natural child. See 14-2- The district court found neces 113(e)(ii)(1986) (repealed in and re sary guidelines to deviate Wyo.Stat. placed by 20-6-301-306 §§ great that it reasons set out detail (the (Supp.1992) shall consider rel adequately justify the court’s innova including living evant facts standard requiring The language tion. parents); and the circumstances of the set in “specific to be dollar amount” is Nuspl (Wyo. Nuspl, 717 P.2d violated the court’s modification or 1986)(noncustodial parent’s operation mere der. There is no for violation because the monthly enough on a deficit was not to free provides mula father from increase in his child *5 readily specific amounts and translates to a obligation); Harrington Harrington, v. Ap dollar amount when escalation occurs. (needs 356, 1983) (Wyo. 660 P.2d of 360 pellant contends the district court should children, living of standard desired provided have child also for reductions in petition parent, custodial are at issue in a if income fell or for modify support); Holtz v. see above, overpaid. if he As if refunds noted 972, Houston, ex rel. 847 State P.2d 975 come those circumstances do about in (Wyo.1993). Harrington Our decisions in meaningful sense, they may be addressed Nuspl, suggest extent they petition modify the support. parent the means of the not be an should Likewise, the district court’s order does important in setting consideration the level statutory requirement violate the of child need to be clarified. changed circumstances. The district court support set at a level which is consistent determined that cir under the relevant parent’s with the wealth and income does cumstances child should be within not constitute an abuse of discretion. $l,270-$2,000, and, of all other Bereman, 1155, Bereman v. 645 1160 P.2d things remaining equal, stay, it at should (Wyo.1982). that level. other things Should all not re After careful consideration the stat- of equal, appellant may change main seek a utes govern which and the level of support. the aggregate statutes, intention of those comprehensive body law, when read Appellant as a of contends we hold that district court did not court erred in averaging his income over abuse its discretion in establishing years. esca- four It is obvious from lation clause. Given even a minimum level record that the district court con faced cooperation parents, difficulty ap between these siderable in determining what pellant’s monthly escalation clause should diminish the need net income was because repeated- experienced for the custodial parent return he year- month-to-month and ly to court to-year the decree in order to fluctuations. We do not read the avoid the prospect increasingly governing inade- prohibiting statutes as use Likewise, quate an average should reduce such where circumstances re parent of the quire attendant need custodial it. We hold the district court acted expend significant attorney sums for averaging within its sound discretion in fees, help prevent as well as the emotional the four-year peri income over appear- course, trauma associated such court od selected. Of as to ances. Such an due, escalation clause does not immediately was and delete the escalation clause express court did reverse district from the decree. i.e., amount, $1,270. Marriage In re See 91, (Iowa McQueen, 493 92-93 N.W.2d Nelson, v. 454 N.W.2d App.1992); Nelson Studt,

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 decree 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