Durham v. Durham

2003 WY 95, 74 P.3d 1230, 2003 WL 21961412
CourtWyoming Supreme Court
DecidedAugust 19, 2003
Docket02-130
StatusPublished
Cited by14 cases

This text of 2003 WY 95 (Durham v. Durham) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durham v. Durham, 2003 WY 95, 74 P.3d 1230, 2003 WL 21961412 (Wyo. 2003).

Opinion

GOLDEN, Justice.

[T1] The district court granted the parties a divorce, awarded primary custody of the parties' two children to Becky E. Durham (mother), and ordered Brian Durham (father) to pay child support. In this appeal, mother challenges the district court's child support order, claiming the district court abused its discretion in imputing to her gross income of $35,000 per year, equal to a salary she carned in Virginia in 1992. She contends the district court's imputation of income is not supported by the record because there is no evidence regarding whether mother could earn such a salary in Gillette, Wyoming, where she now resides. Mother also claims the district court abused its discretion in allocating the expense of travel for visitation. We agree with mother that the record does not support the district court's imputation of income. We reverse and remand for further proceedings.

ISSUES

[T2] The parties generally agree on the following issues:

1. Whether the District Court erred when it imputed [to mother] $35,000.00 gross annual income for purposes of caleu-lating [mother's] child support contribution?
2. Whether the District Court erred when it ordered [mother] to pay all of the reasonable and necessary travel expenses for the parties' children to visit [father] twice per year for 2003 and beyond and/or deviated from the presumptive child support guidelines because of [father's] difficulty and expense of visitation travel?

FACTS

[T3] The parties were married on September 19, 1992. During the marriage, the parties made their home in Alexandria, Virginia. Throughout the course of the marriage, father was employed by Navy Sea Systems Command. At the time of the marriage, mother was employed by American Express, where she earned $35,000 in 1992, the last year she worked for that entity. After the parties married, mother's employment with American Express ended, and she became a homemaker and worked part time for the parties' church. Mother earned, on average, between $10,000 and $12,000 per year. Two daughters were born of the marriage, the first on April 28, 1997, and the second on November 18, 1998. Eventually, irreconcilable differences developed.

[T4] The parties separated around October 28, 1999. During that week, while father was out of the country on a work assignment, mother left the marital home without notify, ing father, taking the children with her. Mother and the children moved from Virginia to Gillette, Wyoming, where they took up residence with mother's parents. After settling in Gillette, mother began teaching piano lessons, performing piano accompaniments, and teaching music lessons to children. In the year 2000, mother grossed approximately $7,000 from those and her other endeavors.

[T5] Mother filed for divorce, in Campbell County, in May of 2000. The district court held a two-day divorcee trial on December 21-22, 2000, and issued a decision letter on January 29, 2001. The district court awarded mother the primary care, custody and control of the parties' children. Father was granted visitation and ordered to pay child support. With respect to child support, the decision letter provides:

Child Support: The court finds that [mother] is intentionally underemployed. By her own testimony she is but a few hours away from an MBA and in her last year of full-time employment, 1992, made *1233 $35,000. She is now employed teaching music to children, which, while a commendable endeavor, is not one that adequately meets her earning potential and accompanying benefit to the minor children. [Mother] chooses this course. The court imputes annual gross income to [mother] at $35,000 per year. The court imputes [mother's] net monthly income at $2,388, after appropriate deductions.
#s tok
[Father's] net monthly income is $5387. The parties total child support obligation to the children is $1590. - Under the Child Support Guidelines, [father's] share of the support obligation is $1105. However, given the distance that [father's] children now reside from him, and the difficulty and expense of visitation, the court finds that a deviation from the guidelines is appropriate and, therefore assesses an obligation of $450 per month per child for a total of $900 per month, commencing February 1, 2001. W.S. § 20-6-802(b)(vii).

[¶ 6] With respect to expense of travel for visitation, the decision letter also noted that "Igliven the substantial distance of the parties from one another, occasioned by [mother's] move, and the ages of the children the court finds that special considerations concerning travel expenses should be made." The district court determined that, beginning in 2003, mother "shall bear the reasonable and necessary expenses for two visits (round trip) for the children per year."

[¶ 7] After the district court issued its decision letter, the parties could not agree on a final order in a timely fashion. Consequently, the district court bifurcated the proceedings. On December 21, 2001, it entered a decree of divorce, which served to divorce the parties and leave all remaining issues for a future order. Finally, on March 26, 2002, the district court entered its "Order of Child Custody, Visitation and Support and Property and Debt Division." That order implemented child support in accord with the district court's decision letter. This appeal followed.

STANDARD OF REVIEW

[T8] Decisions concerning child support are committed to the sound diseretion of the district court. Carlton v. Carlton, 997 P.2d 1028, 1031 (Wyo.2000); Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998); Scherer v. Scherer, 931 P.2d 251, 253-54 (Wyo.1997).

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireamstances and without doing so arbitrarily or capriciously. We must ask ourselves whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.

Thomas v. Thomas, 983 P.2d 717, 719 (Wyo.1999) (citations and quotations omitted).

DISCUSSION

A. Imputed Income

[T9] Mother claims the district court abused its discretion when, for purposes of caleulating child support, it imputed to her an annual income of $85,000. Mother does not challenge the district court's determination that she is underemployed and that income should be imputed. Instead, her complaint is that the amount of imputed income is too high given the record in this matter. Specifically, mother asserts that the record does not contain evidence of employment opportunities or prevailing wages in Gillette. In addition, she points out that the only time she made $35,000 a year was in 1992 in Virginia.

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Bluebook (online)
2003 WY 95, 74 P.3d 1230, 2003 WL 21961412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durham-v-durham-wyo-2003.