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Brush v. Davis

Supreme Court of Wyoming

December 27, 2013

Kelly Suzanne BRUSH, f/k/a Kelly Suzanne Davis, Appellant (Plaintiff),
v.
Roger Ryan DAVIS, Appellee (Defendant).

Page 649

[Copyrighted Material Omitted]

Page 650

Representing Appellant: John D. Chambers, Casper, Wyoming.

Representing Appellee: Roger Ryan Davis, pro se.

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

KITE, Chief Justice.

[¶ 1] The district court modified custody and support for the parties' minor child. Appellant Kelly Suzanne Brush f/k/a Kelly Suzanne Davis (Mother) appeals, claiming the district court did not have jurisdiction to grant a change of custody or support, she was denied due process of law when a default judgment was entered against her, and the district court abused its discretion when awarding child support.

[¶ 2] We affirm.

ISSUES

[¶ 3] Mother presents the following issues on appeal:

I. Whether the district court lacked subject matter jurisdiction to grant a default judgment due to Appellee's failure to comply with the statutory pleading requirements?
II. Whether the Appellant was denied due process when default was improperly entered against her and subsequently, improperly upheld against Appellant?
III. Whether the District Court abused its discretion in entering a child support [order] due to its failure to comply with statutory child support requirements?

Appellee Roger Ryan Davis (Father) maintains the district court had jurisdiction and correctly ruled on the child custody and support issues.

FACTS

[¶ 4] Father and Mother divorced in 2005 in Natrona County. Mother was awarded primary custody of the parties' children,[1] and Father was ordered to pay child support. On November 2, 2012, Father filed a Petition for Modification of Custody and Time-Sharing in the same court under the same docket number. Acting pro se, Father drafted his own petition and did not use the Family Law Pro Se Forms provided by the Wyoming Supreme Court. Although his petition stated that a copy of the original divorce decree was attached as an exhibit, it was not.

[¶ 5] Father filed an Affidavit of Service indicating that Mother had been served with a summons and " Petition to Modify Custody and Support" on November 3, 2012, in Casper. On November 29, 2012, Father filed an

Page 651

Application for Entry of Default against Mother, stating that she had been served on November 3, 2012, but had not responded within the time allowed by law. The accompanying Affidavit of Petitioner in Support of Default incorrectly stated that Mother was served on November 5, 2012. The clerk of the district court entered a default against Mother. Father presented a proposed order modifying custody and support, but the district court refused to enter it without a hearing.

[¶ 6] At the hearing on January 18, 2013, neither party was represented by counsel, so the district court explained that Father had the burden of proving a substantial change of circumstances had occurred since the last order and it was in the best interest of the child to change custody. The judge also stated:

[Mother] was properly served and has not answered. So [Father] is entitled to present any witnesses that he has, and he may testify himself. [Mother] may cross-examine any witnesses he calls, but you cannot testify yourself or present any witnesses because you are in default for not having filed an answer.

The hearing proceeded under those parameters and Mother cross examined the witnesses, including Father, and presented a closing statement arguing that it was in the child's best interest to remain in her custody.

[¶ 7] The district court agreed there had been a substantial change of circumstances and it was in the child's best interest for Father to be awarded custody. The judge stated, however, that " [i]t's not clear to me what the parties' incomes are. So I would like both parties to submit financial affidavits within five days, and I'll determine child support." Father filed a confidential financial affidavit, but Mother did not. The district court used an Affidavit of Indigency, which Mother had filed prior to the hearing apparently requesting appointment of counsel, to determine Mother's income. It ordered Mother to pay $340 per month, ...


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