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The State of Wyoming, Department of Family Services, Child Support Enforcement v. Connie M. Powell

May 9, 2013

THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, CHILD SUPPORT ENFORCEMENT, APPELLANT (INTERVENOR),
v.
CONNIE M. POWELL, APPELLEE (DEFENDANT).



Appeal from the District Court of Hot Springs County The Honorable Robert E. Skar, Judge

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

Before KITE, C.J., 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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] In 2009, the Wyoming Department of Family Services (Department) filed an action to enforce a 2003 order requiring Connie Powell to pay child support and certain related expenses. Instead of enforcing the 2003 order, the district court set aside the 2003 order, ordered that the child support obligation be recalculated, and directed that the revised child support obligation be applied retroactive to 1999, the date the children's father obtained custody of the children. The Department appeals, contending that the district court abused its discretion in setting aside the 2003 order. We hold that the district court was without jurisdiction to modify the 2003 child support order and remand for entry of an order consistent with our direction herein.

ISSUE

[¶2] The Department presents the following issue on appeal:

In 2012, the district court ordered a retroactive recalculation of child support against Connie Powell, the non-custodial mother. The district court also set aside a 2003 judgment entered against Ms. Powell for child support arrears and medical and travel expenses even though neither the mother nor the father filed a motion or petition requesting modification of child support or relief from the judgment. Did the district court abuse its discretion by retroactively modifying the child support order and setting aside the judgment without a proper petition or motion from a party requesting such relief?

FACTS

[¶3] Charles Ferree (Father) and Connie Powell (Mother) divorced in 1990. Mother and Father had two children as issue of the marriage, CF and WF, and originally entered into a Property Settlement and Custody Agreement that gave Mother primary custody of the children and established Father's child support obligation. In 1991, Mother and Father stipulated to a modification of their agreement, which provided that each parent would have custody of one child and neither would pay child support. The agreement was approved by a May 16, 1991 Order Modifying Decree of Divorce.

[¶4] In 1998, Mother and Father stipulated to transfer the case from the First Judicial District to the Fifth Judicial District, Hot Springs County, since Mother lived out of state and Father lived in Hot Springs County. In 1999, Mother and Father again stipulated to a modification of their divorce decree, this time agreeing that Father would have primary custody of both children, Mother would be responsible for half the children's medical expenses not covered by insurance and half of the travel expenses for the children's visits with Mother, and Mother would have no responsibility to pay child support. In August 1999, the district court entered an order approving the stipulated modification except the terms governing child support. Regarding child support, the court ruled that the parties' stipulation was contrary to law, and it ordered:

Plaintiff and Defendant shall submit financial affidavits to the Court within twenty (20) days of this Order, along with any further stipulations as to child support. If child support is not resolved within thirty (30) days, the parties shall request a hearing before the Court.

[¶5] Neither Mother nor Father filed financial affidavits or requested a hearing on the child support as ordered, and the case remained inactive until May 2003, when Father filed a Motion for Order to Appear and Show Cause. Through that motion, Father alleged that Mother had made no payments toward her half of the children's expenses or any child support payments since entry of the 1999 order. Father requested that the district court order Mother to pay her half of the children's expenses and that:

The Court order the Defendant to supply copies of tax returns from 1999 to present and a financial affidavit to determine whether or not the Defendant is capable of working to support the minor children and determine child support for both children either at the statutory minimum or pursuant to Wyoming Statutes, and make said payments retroactive from the Court's Order of August 23, 1999.

[¶6] Following a hearing on June 30, 2003, the district court entered an Order on Medical and Child Support, dated August 4, 2003. The court made findings concerning medical and travel-related expenses and granted Father the sum of $21,027.85 "for arrearages for child support, medical care, and transportation costs of the minor children as of June 30, 2003." Concerning child support, the order stated, in part:

7. An Order was issued by this Court changing primary custody of the minor child, [WF], which order was signed and filed on August 23, 1999, which ordered the parties to submit appropriate wage affidavits for determination of proper child support.

8. Proper affidavits were not submitted.

9. Pursuant to the Order to Appear and Show Cause signed by this Court on May 23, 2003, the Defendant and Plaintiff supplied income affidavits and copies of pay stubs. Based upon the pay stub submitted by the Defendant, she ...


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