Plymale v. Donnelly

2007 WY 77, 157 P.3d 933, 2007 Wyo. LEXIS 84, 2007 WL 1366334
CourtWyoming Supreme Court
DecidedMay 11, 2007
Docket06-219
StatusPublished
Cited by15 cases

This text of 2007 WY 77 (Plymale v. Donnelly) 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
Plymale v. Donnelly, 2007 WY 77, 157 P.3d 933, 2007 Wyo. LEXIS 84, 2007 WL 1366334 (Wyo. 2007).

Opinion

BURKE, Justice.

[T1] Connie Plymale (Mother) challenges an order granting Gavin Donnelly's (Father's) claim for abatement following the summer of 2005. She contends that the district court erred by crediting Father for time in August when he did not meet the statutory consecutive day requirement and by abating Father's entire child support obligation for the time the children resided with him during the summer. We reverse.

*935 ISSUES

[¶ 2] Mother states the issue as:

1. Did the [district court] improperly calculate the abatement allowable to [Father}?

Father presents three issues for review:

1. Did [Mother] fail to file a timely objection to [the] claim for abatement and as such should this appeal be dismissed?
2. Is the issue of proper abatement in this matter barred by collateral estop-pel and as such should this appeal be dismissed?
3. Was it clearly erroneous for the district court to permit abatement in child support in the amount of $2,310.00 due to [Father's] status as the summer custodial parent?

FACTS

[T3] The parties were married in 1997 and two children were born as issue of the marriage. They resided in Laramie, Wyoming. Unhappy with the marriage, Mother moved to Casper with the children. Father filed for divoree in July of 2002, and a custody battle ensued. A decree of divorcee was entered in July of 2008. Mother was awarded primary residential custody during the school year. Father was awarded primary residential custody during the summer. Both parties enjoy liberal visitation while the children are residing with the other parent. Based on this custodial arrangement, Father's child support obligation was initially set at $788.00 per month. The decree of divorce does not address the abatement of child support.

[T4] Following the summer of 2008, Father filed a claim for the abatement of his child support. He requested abatement in the amount of $518.45 for June 12, 2008, through August 26, 2008. Mother objected asserting that Father was only entitled to abate through August 8, 2003. She claimed that Father was not entitled to the extra days in August, because the children were in her care from August 8, 2003, through August 17, 2003, and that time period interrupted the number of consecutive days Father had physical custody of the children. The district court agreed with Mother and granted abatement in the amount of $346.68 for the dates of June 12, 2003, through August 8, 2003. This amount represented one-half (1/2) of Father's daily support obligation.

[¶ 5] In June of 2004, Mother filed a petition to modify the child support order. Eventually, the parties stipulated that Father would pay $1,050.00 per month (the presumptive amount) effective June 1, 2004. The modification of the support order did not address the calculation of child support abatements.

[T6] Following the summer of 2004, Father filed another claim for abatement. He requested that his support abate by $788.00 for the time period of June 11, 2004, through August 22, 2004. Seemingly in response to a new judge presiding over the case, Father filed correspondence addressed to the dis-triet court requesting full relief from his child support obligation for the summer months. 1 Father reasoned that, due to Mother's relocation to Casper, he incurred substantial expense in order to exercise his visitation. He also claimed that he should not be required to pay support during the summer months because he is the custodial parent during that time.

[¶ 7] Mother did not respond to the arguments raised in Father's correspondence to the district court judge. However, she objected to Father's claim for abatement contending that he was only entitled to a credit of one-half (1/2) the daily support obligation for the dates of June 11, 2004, through August 9, 2004. She again asserted that Father was pot entitled to the additional days in August because he did not meet the statutory consecutive day requirement.

[¶ 8] On November 5, 2004, the district court entered its order granting the claim for abatement in the amount of $2,810.00 for June 11, 2004, through August 22, 2004. *936 Mother filed a motion to reconsider on November 9, 2004, claiming that such an amount was improper. The motion was denied on December 7, 2004. Mother appealed from the order denying the motion to reconsider. Plymale v. Donnelly, 2006 WY 3, 125 P.3d 1022 (Wyo.2006).

[¶ 9] While that appeal was pending, Father filed his claim for abatement following the summer of 2005. Pursuant to his claim, Father requested abatement of his support for the dates of June 11, 2005, through August 22, 2005 (72 days). He again filed correspondence requesting relief from his child support obligation on the basis that he is the custodial parent during the summer months.

[T10] Due to the pending appeal, the parties agreed to allow abatement of $983.84, which represented one-half (1/2) of Father's daily support obligation for 57 days, and to reserve decision on the remainder of Father's claim until the appeal was resolved. The agreement was incorporated in the Stipulated Order Allowing Temporary Abatement and Reserving Final Abatement Order Until Decision on Appeal is Received, entered on October 20, 2005. The stipulated order recognized Mother's objection to Father's abatement claim, although Mother did not file her formal objection until October 28, 2005.

[¶ 11] On January 6, 2006, we dismissed the appeal of the 2004 abatement on jurisdictional grounds because Mother appealed from the order denying her motion for reconsideration and not the order granting abatement. Plymale, 125 P.3d 1022. After the dismissal, Father filed a motion requesting that his full claim for the abatement for the summer of 2005 be entered. The district court entered its order granting the abatement in the amount of $2,310.00 for 72 days on August 24, 2006. This appeal followed.

DISCUSSION

[¶ 12] Mother challenges the district court's order granting Father's claim for abatement for the summer of 2005. She contends the district court erred in calculating the percentage of abatement and the period of time for which the abatement was allowed. Specifically, Mother claims the district court improperly credited Father for time in August when he did not have the children for fifteen (15) consecutive days and improperly relieved Father of his child support obligation for the summer months by granting a one-hundred percent (100%) abatement for the time the children were in his care. Before we reach the merits of Mother's arguments, we must first address Father's contentions that this appeal should be dismissed.

I. Failure to Timely Object

[T13] As a threshold issue, Father contends that we must dismiss this appeal because Mother failed to file a timely objection to his claim. He directs our attention to Wyo. Stat. Ann. § 20-2-305(c), (d) (Lexis-Nexis 2005), which provides that an objection must be filed within thirty days or the objection is barred. 2

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Bluebook (online)
2007 WY 77, 157 P.3d 933, 2007 Wyo. LEXIS 84, 2007 WL 1366334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plymale-v-donnelly-wyo-2007.