Jessen v. Jessen

802 P.2d 901, 1990 Wyo. LEXIS 166, 1990 WL 209236
CourtWyoming Supreme Court
DecidedDecember 20, 1990
Docket90-115
StatusPublished
Cited by7 cases

This text of 802 P.2d 901 (Jessen v. Jessen) 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
Jessen v. Jessen, 802 P.2d 901, 1990 Wyo. LEXIS 166, 1990 WL 209236 (Wyo. 1990).

Opinions

URBIGKIT, Chief Justice.

In this appeal, we are presented issues concerning the validity of an agreement entered into by appellant, Kent Jessen (husband), and appellee, Tina Jessen (wife), which requires husband to make very substantial “late charge” payments to wife in the event husband is delayed in making his child support payments. He was delayed in these payments for about every payment, if made at all. Husband also questions the authority of the district court commissioner to make conclusions of law. The district court found husband in contempt for failure to make child support payments and entered a judgment in favor of wife for past due child support and a substantial amount of late charges total-ling $13,275.00. Husband has not purged himself of the contempt, even to the extent of paying the amount of child support actually owed. Based on our decision in Connors v. Connors, 769 P.2d 336 (Wyo.1989), we remand this case for a period of two months to permit husband to satisfy outstanding child support payment obligations which, if not satisfied within that time, will result in appeal dismissal.

Upon confirmation by the clerk of the district court, within the two month period, that the payments are current in accord with the computation provided herein, this court will proceed to hear and determine the substantive appellate issue. That [902]*902issue is non-enforcement of husband’s agreement to pay a high rate penalty if support payments are not timely made, which agreement by stipulation had been incorporated into an earlier modified decree. Clearly, the district court had jurisdiction to accept the stipulation of the parties, now leaving only enforceability to be tested in this appeal.

Husband raised these issues:

Is the creation of a “late fee” by a child support obligee an assessment of penalty and hence, unlawful and unenforceable? Is the creation of a “late fee” by a child support obligee permissible where the assessment is so large/egregious as to be unconscionable?
Can a money judgment, including an amount for a “late fee” created to force payment of child support, be enforced by calling it “liquidated damages” where there is no evidence of damage?
Does a court commissioner have the authority to make conclusions of law?

In counterpoint, wife states the issues thus:

1. Should the Appellant’s [husband’s] Appeal be dismissed based upon the “Bright Line Rule” set forth in the case of Connors v. Connors, 769 P.2d 336 (Wyo.1989)?
2. Whether or not the District Court and District Court Commissioner abused their discretion in finding that the late charge stipulated to by and between the Appellant [husband] and Appellee [wife] was enforceable?
3. Whether or not a Court Commissioner has the authority to make conclusions of law?

The facts pertinent to our disposition of this case are that the parties were divorced by decree on May 27, 1982. The decree provided that husband was to pay wife $250 per month for support of their one minor child, but that provision was modified by stipulation and an order entered December 20, 1984, as follows:

8. That the Defendant [husband] shall pay to the Plaintiff [wife] the sum of $325.00 (Three hundred twenty-five) dollars per month for child support of the child until the child reaches the age of majority, marries, becomes self-supporting, or is emancipated. Said payments are to be made to the Clerk of the District Court, Laramie County, Cheyenne, Wyoming and shall be in the form of money order, certified check, or cash. The first payment shall begin on the first day of May, 1984 and like payments on the first day of each month thereafter. If the Defendant is late paying his child support payment, then a late fee charge of 10% (ten percent) per day for the first 10 days and $5.00 (five) dollars per day thereafter shall be charged on said late child support payment.

On May 29, 1985, husband filed a petition to modify the divorce decree, asking that child support be reduced to the original $250 per month and that the “penalty in paragraph 8 [quoted above] * * * be stricken as constituting an imposition of such a penalty as to be onerous and working a hardship on Defendant [husband].” Other issues, including visitation in particular, were raised in the 1985 proceeding. However, the district court declined to modify paragraph 8 of the 1984 stipulation in any way and no appeal was taken.

On July 6, 1989, wife filed a petition for order to show cause, for judgment, and to modify the divorce decree. The petition sought to compel husband to pay arrearage in his child support of $1,855, as well as other relief. That petition was dismissed with the consent of both husband and wife. On December 29, 1989, wife filed another motion asking that husband be required to satisfy unpaid child support obligations and late charges in the sum of $230,157. A hearing was held before the district court commissioner on February 26,1990, and his report was filed with the district court on February 28, 1990. In response to the latter petition, husband claimed he was coerced into signing the late charge agreement. Based on the late charge agreement, the commissioner recommended to the district court that husband be required to pay wife $13,275, some of which was for support owed and some a late charge. The commissioner found that the amount owed [903]*903by husband for late child support, at the rate of $325 per month, was $3,575 as of February 26, 1990.

On April 13, 1990, the district court entered its judgment, based on the report of the court commissioner, and directed husband to pay $13,275 for past due child support and late charges to and including February 26, 1990,1 and found husband in contempt for failure to pay child support. The contempt citation sentenced him to three months in the Laramie County Detention Center and provided that husband could purge himself of contempt by (a) paying $308.71 for wife’s attorney’s fees and costs, and (b) providing security on non-exempt property satisfactory to the district court to secure payment of child support as a guarantee of all future support obligations. In addition, husband was ordered to make all child support payments to the clerk of the district court and any payments he made directly to wife would be considered gifts. The district court also continued the child support obligation at $325 per month (husband had asked it to be modified to the original sum of $250 per month) and authorized wife to execute on the security required to be posted with the district court in the event husband was ever again late in making his child support payments. An order directing income withholding under the Income Withholding Act, W.S. 20-6-201 through 20-6-222, was also entered. Husband filed a timely notice of appeal challenging the orders of the district court.

On May 11, 1990, wife filed yet another petition seeking a finding of contempt against husband because he had failed to comply with the district court’s April 13, 1990 judgment. On July 19, 1990, because of husband’s delinquency, she filed a “Motion to Dismiss Appeal, or in the Alternative Motion for Order Allowing Supplementation of Record” with this court.

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Jessen v. Jessen
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Cite This Page — Counsel Stack

Bluebook (online)
802 P.2d 901, 1990 Wyo. LEXIS 166, 1990 WL 209236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jessen-v-jessen-wyo-1990.