McElwain v. McElwain

2005 WY 147, 123 P.3d 558, 2005 Wyo. LEXIS 173, 2005 WL 3112015
CourtWyoming Supreme Court
DecidedNovember 22, 2005
DocketNo. 05-32
StatusPublished
Cited by2 cases

This text of 2005 WY 147 (McElwain v. McElwain) 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
McElwain v. McElwain, 2005 WY 147, 123 P.3d 558, 2005 Wyo. LEXIS 173, 2005 WL 3112015 (Wyo. 2005).

Opinion

BURKE, Justice.

[¶ 1] Vernon Roy McElwain challenges an Order Entering Judgment and Modifying Decree issued by the district court. Mr. McElwain claims the district court erred by entering a judgment for the unpaid balance of a mortgage debt because the debt was extinguished when the property was refinanced. Alternatively, Mr. McElwain contends the district court erred by failing to credit him for prior payments made toward the debt. Mr. McElwain also claims the court erred in entering a judgment for delinquent child support because the minor child was emancipated. We affirm.

ISSUES

[¶ 2] We restate the issues as follows:

1. Was the district court’s judgment regarding the mortgage debt erroneous?

2. Did the district court err in awarding delinquent child support because the minor child was emancipated?

FACTS

[¶ 3] The parties were divorced on June 13, 1998. The decree required Mr. McEl-wain to pay one-half of the mortgage debt owed on the residence retained by Mrs. McElwain and child support for the parties’ minor child.1 From the date of the divorce [560]*560through December 2003, Mr. MeElwain made payments on both obligations as ordered. In January 2004, Mrs. MeElwain refinanced the mortgage debt. That same month, Mr. MeElwain ceased making his portion of the mortgage payment. Mr. MeElwain also stopped making his child support payments in March 2004.

[¶ 4] Mrs. MeElwain filed a Motion for Order of Contempt premised upon the following grounds:

1. That the Defendant, VERNON ROY McELWAIN, has failed and refused to pay Plaintiff child support in the sum of $265.00 for the months of March through July 2004....
2. That pursuant to paragraph 8 b) of the decree of divorce entered herein, Defendant was to pay and hold Plaintiff harmless from one-half of the then existing mortgage by payment of one-half [of] the mortgage payment in the sum of $210.00 per month, which Defendant paid until January of 2004.
3. That as of January 2004 Plaintiff had refinanced the debt and removed the Defendant from his obligation to the Bank, but did not terminate his obligation to pay the amount set forth in said decree to be paid to Plaintiff in order to hold her harmless from said indebtedness.
4. That as of January 2004 the principal amount due and owing upon said indebtedness was $42,388.00, one-half of which is Defendant’s obligation to pay in the sum of $21,194.00, together with interest accruing at the rate of 7.825 percent per annum.
5. That [$]45.99 per payment of the sum of $210.00 paid by the Defendant to January 2004 was for escrowed taxes and insurance, which are part and parcel of the mortgage debt, and which costs Defendant should continue to pay until the debt to Plaintiff is satisfied.

An order to show cause was issued on July 16, 2004. Mr. MeElwain in his pro se response alleged:

1. Child Support was paid to the Court through February 2004 as ordered. March 2004 child support was sent directly to [the child]. Judy MeElwain demanded [the child] to turn over the child support to her of which [the child] told me he did. $265.00. The reason I chose to pay [him] the child support for March was he moved out of Judy McElwain’s home after completing his required classes for graduation in January 2004. [He] moved to Sheridan Wyoming to live with an older brother and work full time. [He] was making a vehicle payment, motorcycle payment, vehicle insurance and etc. With these circumstances I believed this would constitute emancipation per Decree of Divorce dated June 15, 1998, Page 3 #2. I do not believe I owe Judy MeElwain any back child support.
2. Mortgage Payment.This mortgage was a result of consolidation of several debts incurred by Judy MeElwain and myself including Judy’s credit cards, Judy’s son Dax McCarty’s vehicle, joint credit cards, monies to remodel Judy’s house, pay off 1994 Toyota Camery (which Judy received in the divorce), two $1000 CD’s which one was used to buy 1980’s Ford Pickup for my use. These debts were incurred jointly but not equally.
Divorce Decree reads ½ of mortgage est. $20,000.00. I paid $210 from June 1998 through February 2004 which is 69 payments equal $14,490.00. It was not stated that part of any payment went to taxes and insurance and I was never given a statement. I believe any loan is set up with part of the payments going toward taxes and insurance. If payments were $420.00 then over half of the original would have been paid off. It is my understanding that Judy MeElwain refinanced the home for improvements. What was the loan balance at that time? I do not feel I should be held liable for extra monies Judy MeElwain received for a new loan. Judy MeElwain was allowed to use the interest [561]*561each year from 1998 thru 2003 for tax purposes even though I was suppose to be paying half the mortgage payment. It is my understanding that Judy McElwain has sold this home.

[¶ 5] A hearing was held on October 11, 2004. Both parties attended, but no record was made. The district court entered its order on November 10, 2004. The court declined to hold Mr. McElwain in contempt; however, judgment was entered against Mr. McElwain for his unpaid portion of the mortgage indebtedness in the amount of $21,194.00 and for delinquent child support in the amount of $675.00. The court made no specific finding concerning emancipation. This appeal followed.

STANDARD OF REVIEW

[¶ 6] We have previously stated our standard of review governing domestic relations contempt cases:

“[W]e will not disturb the decision of the trial court ... in the absence of some serious procedural error, a violation of a principle of law, or a clear and grave abuse of discretion.”
“Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. We must determine whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.”

Erhart v. Evans, 2001 WY 79, ¶ 11, 30 P.3d 542, 545 (Wyo.2001) (internal citations omitted). As the appellant, Mr. McElwain is required to provide this Court with a sufficient record to allow proper evaluation of the trial court’s decision. Beeman v. Beeman, 2005 WY 45, ¶ 10, 109 P.3d 548, 551 (Wyo.2005).

DISCUSSION

A. Mortgage Indebtedness

[¶ 7] Mr. McElwain’s chief complaint is that any judgment against him for the mortgage debt was erroneous. He claims he is no longer obligated to pay any portion of the mortgage debt because the property was refinanced by Mrs. McElwain.

[¶ 8] We addressed a similar situation in Roe v. Roe, 742 P.2d 203 (Wyo.1987). Roe involved a post-divorce dispute regarding an obligation to pay an outstanding mortgage. Mr. Roe agreed to pay a portion of the mortgage indebtedness, in monthly installments of $250.00. Id. at 203. The terms of the settlement agreement also allowed Mr.

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Bluebook (online)
2005 WY 147, 123 P.3d 558, 2005 Wyo. LEXIS 173, 2005 WL 3112015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelwain-v-mcelwain-wyo-2005.