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Raymond Alexander Verheydt v. Tammi Wai-Ping Verheydt

March 5, 2013

RAYMOND ALEXANDER VERHEYDT, APPELLANT (DEFENDANT),
v.
TAMMI WAI-PING VERHEYDT, APPELLEE (PLAINTIFF).



Appeal from the District Court of Sweetwater County The Honorable Nena James, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] Tammi Wai-Ping Verheydt (Wife) and Raymond Alexander Verheydt (Husband) were divorced by decree entered February 27, 2012. Husband appeals, claiming the district court abused its discretion in imputing his monthly income and ordering him to pay child support for several months when he was living in the marital home after Wife filed for divorce and ordering him to pay half the cost of the children's past and future activities as an upward deviation of child support. Husband also contends the district court deprived him of due process in making the above rulings without evidentiary support. We find that Husband waived his right to assert these claims on appeal and we affirm the district court's rulings.

ISSUES

[¶2] Husband presents the issues for this Court's determination as follows:

1. The District Court imputed income to [Husband] without evidence supporting its findings.

2. The District Court's upward deviation in child support is not supported by evidence, and does not conform to Wyoming's statutory requirements.

3. The District Court cannot order child support and an upward deviation to that support, for time in which a parent resides with his children.

4. The District Court deprived [Husband] of his right to due process when it entered an order having no evidentiary support.

[¶3] Wife asserts Husband waived any due process claim by agreeing to proceed by oral argument rather than an evidentiary hearing; conceded or at least did not dispute the facts the district court relied upon in entering its order; and is estopped from challenging the decree because he approved it. Alternatively, she maintains the district court acted within its discretion in entering the decree based upon the undisputed evidence.

[¶4] We conclude the issue for our determination is whether Husband is precluded from asserting his claims on appeal because he expressly waived his right to be heard, agreed to proceed without an evidentiary hearing, did not object to the district court deciding the matters based upon the pleadings, submissions and oral arguments of counsel, and did not request the opportunity to present evidence.

FACTS

[¶5] The parties were married in 1994. They had three children during the marriage: AMV, born in 1999, and MOV and MSV, twins, born in 2001. Wife filed for divorce in January of 2011. She requested the district court award the parties joint legal custody of the children and sought primary physical custody. At the time she filed her complaint for divorce, Wife also filed motions for temporary custody of the children and temporary possession of the marital home. In the motion, she stated the parties had not formally separated but she had asked Husband to leave the marital residence.

[¶6] After a hearing on the motions, the district court on May 4, 2011, entered an order in which it found that both parties were very involved with the children and were entitled to remain in the marital home "because ejecting either from the premises would work a disservice to the minor children." The district court awarded the parties joint legal custody and Wife primary care, ordered the parties to exercise visitation as they had been and ordered that neither party be required to leave the residence. In July of 2011, pursuant to a second motion filed by Wife, the district court entered an order requiring Husband to move out of the home and giving Wife temporary custody of the children during the divorce proceedings.

[¶7] In August of 2011, the parties participated in mediation and reached a settlement agreement concerning the division of their property. They expressly reserved for later resolution the issues of child custody, visitation and support. Subsequently, the parties entered into a marital settlement, child custody, visitation, and child support agreement. Pertaining to the issues on appeal, the parties agreed that Husband was obligated to pay Wife $1,000 per month for child support based upon an imputed net income for Husband of $5,600 per month and Wife's net income of $6,400. They agreed that Husband had paid no child support in the fourteen months since Wife filed for divorce. They also agreed Husband would pay $7,000 in back child support for the seven month period after he moved out of the marital home in August of 2011 through the divorce trial scheduled in February of 2012. The parties asked the district court to determine what amount in back child support Husband should pay for the seven months in which he continued to live in the marital home after Wife filed for divorce. The parties also agreed the children should continue with ice skating and dance activities in which they had participated since they were young and Husband had not contributed financially to the costs of those activities since the divorce was filed. They agreed the district court should determine how the future costs of the activities should be apportioned between them and what amount, if any, Husband should have to pay to Wife for the children's past activity costs.

[¶8] The agreement also contained the following provisions:

6.1 Waiver of Hearing. In the event Wife seeks a divorce, Husband expressly consents to an immediate hearing upon the Wife's Complaint for divorce without notice to the Husband of the time and place of said hearing, hereby waiving his right to be heard in the defense of the matters alleged in the Complaint, or to be present and cross-examine witnesses of the Wife, and further agrees to the entry of judgment herein against him if the Court determines the Wife to be entitled to a divorce. This waiver is contingent upon the Court approving and adopting the terms of this Agreement. . . .

6.3 Understanding of the Parties. The parties, with the advice of their counsel, have ascertained and weighed all facts and circumstances likely to influence their judgment, and they clearly understand and assent to all the provisions hereof. It is understood and agreed between the parties that the provisions of this Agreement shall constitute a full and final settlement of all issues concerning division of property, property rights, financial obligations, alimony, support, attorney's fees and court costs, and any and all claims of any kind whatsoever which either party may have against each other.

6.4 Fairness and Absence of Duress. This Agreement is entered into freely and voluntarily and without duress by either party or by the agents of either party against the other. Each party has had adequate time to carefully consider all the provisions of this Agreement. The parties acknowledge that they are entering into this Agreement freely and voluntarily, that they have ascertained and weighed all of the facts and circumstances likely to influence their judgment herein, that they have sought and obtained legal advice independently of each other, that they are satisfied in every respect with the advice and representation they have received from their respective attorneys, and that they clearly understand and agree to all terms and provisions of this Agreement.

[¶9] The district court set a hearing on the unresolved issues for February 27, 2012. The parties filed their settlement agreement in district court that same day and also presented to the court a divorce decree approved as to form and content by their respective attorneys. Consistent with the settlement agreement, the decree stated that the parties had reached an agreement on many of the issues, including some related to child support, but were seeking court assistance in resolving a few limited issues. The decree stated further that the parties' agreement constituted a full, complete and final settlement agreement as to the matters it included. As it relates to this appeal, the decree found that the parties had agreed Husband would pay Wife $1,000 per month for child support based upon an imputed net income for Husband of $5,600 and Wife's net income of $6,400 and ordered Husband to make those payments.

[¶10] Addressing the matters not resolved by the parties' agreement, the decree the parties submitted stated:

11. Outstanding Matters: The Court was asked to determine certain limited issues with respect to the parties' divorce involving outstanding financial contributions of the parties and how the Court would distribute such expenditures and obligations both past and future. The Court heard the argument of counsel on those issues, reviewed the pleadings, and was otherwise advised in the premises.

The first five pages of the decree, including the provisions quoted above, are type-written. On the sixth page of the proposed decree, paragraphs j and k contained blanks which the parties intended the district judge to fill in as shown in paragraph 15 of this opinion.

[¶11] With the settlement agreement and the parties' proposed divorce decree before it, the district court prepared to hear the parties' arguments. Prior to the hearing, the district court met with the parties' attorneys who advised the district court their clients were willing to proceed without an evidentiary hearing, solely on the basis of the pleadings, submissions and the attorneys' arguments. The court convened the hearing. Both the parties and their attorneys were present. The court characterized the hearing as "a final hearing" in the proceedings and indicated its understanding that the parties had been working hard to settle the case and only two issues remained for resolution at the hearing. The court informed the parties it had reviewed the documents on file and asked for argument on the remaining issues. No objection was made and no request was made for an evidentiary hearing.

[¶12] Through counsel, Wife presented two exhibits showing a breakdown of the costs of the children's skating and dance activities in the fourteen month period since she filed for divorce. Counsel stated that the total costs for the period were $43,558.03 and Wife had paid the entire amount.*fn1 Counsel further stated Wife was asking Husband to pay half of the past and future costs of the skating and dance activities, but was not asking him to pay the cost of the children's other activities. She explained that Husband received half of the marital property, including several rental properties, half the proceeds from the sale of the parties' airplane and $60,000 in cash. As to the second issue, Wife's counsel argued that Husband should be required to pay $1,000 per month, or $7,000 total, for the seven months in ...


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