from the District Court of Albany County The Honorable Thomas
T.C. Campbell, Judge
Representing Appellant Tyler J. Garrett of Hathaway &
Kunz LLP, Cheyenne, Wyoming.
Representing Appellee Sarah J. Manwarren of Jacobs-Polidora,
LLC, Laramie, Wyoming.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Appellant Arsenio Lemus (Father) appeals from the district
court's order awarding primary custody of the
parties' two children and child support to Appellee
Merissa Martinez (Mother). Father claims the district court
abused its discretion in determining child support,
specifically challenging its calculation of his income. He
also asserts the district court violated his right to due
process by limiting his direct testimony and his
cross-examination of Mother's witnesses.
We reverse the district court's child support order and
remand for further proceedings.
Father presents two issues on appeal:
1. Did the district court abuse its discretion when it
calculated the amount for child support based on a
misunderstanding of the evidence establishing Father's
2. Were Father's constitutional due process rights
violated when the district court precluded him from fully
testifying and cross-examining witnesses because of time
includes an additional issue:
1. Is [Mother] entitled to attorney fees and costs against
[Father] pursuant to W.R.A.P. 10.05?
Mother and Father were not married, but they had two children
together-JAL (born in 2006) and AKL (born in 2011). The
family lived together for several years, and Father's
older children occasionally lived with them. Eventually, the
parties' relationship soured, and on November 7, 2016,
Father filed a petition in the district court to establish
child custody, visitation and child support. He sought sole
custody of the children, subject to Mother's visitation.
Father also requested that the court order Mother to pay
child support. Mother responded to Father's petition and
counterclaimed for sole custody of the children and for an
order awarding her child support.
The case was set for a one-day bench trial on September 5,
2017, with the time evenly divided between the parties,
"minus breaks" and "any time attributable to
[the guardian ad litem (GAL)]." The court cautioned both
parties that time was limited and they needed to be
"aware of the implications of running out of time."
The district judge periodically informed the parties of the
amounts of time they had used.
A few days before trial, Father filed a confidential
financial affidavit on the form mandated by Wyo. Stat. Ann.
§ 20-2-308 (LexisNexis 2017). He indicated he was both
employed and self-employed. Father stated he was employed by
Laramie Valley Contracting & Roofing Services, Inc., and
earned a monthly salary of $12, 525. Later in the form, he
declared his gross income from his employment was $9, 491.
After deducting monthly taxes of $2, 086 and the monthly
premium for the children's health insurance, he arrived
at a monthly net income of $7, 030. Father did not provide
any documentation verifying his employment income, such as
pay stubs or W-2 forms. He also did not provide information
about his self-employment income, as directed in the
confidential affidavit form.
Father attached the first two pages of his tax returns for
2014 and 2015 and part of an amended 2014 return to his
confidential financial affidavit. He indicated he had
requested an extension to file his 2016 tax return and it was
due on October 15, 2017. Father did not supplement his
confidential financial affidavit with the 2016 return after
trial. The tax returns he provided did not show any wages,
salaries or tips. The only income reported on the tax returns
was on line 17 for "[r]ental real estate, royalties,
partnerships, S corporations, trusts, etc." The tax
returns directed that Schedule E forms be attached, but they
were not included in Father's court filings. According to
the IRS website, Schedule E is used to report income or loss
from the entities identified in line 17.
Father reported his total income on his 2014 tax returns as
$106, 874 and on his 2015 tax return as $150, 307.
Father's 2015 income of $150, 307, divided by twelve
months, results in a monthly income of $12, 525.58, which is
consistent with one of the amounts reported in his
confidential financial affidavit as being income from his
employment with Laramie Valley Contracting. Father did not
provide tax returns, Schedule K-1s,  or income and expense
reports for his business entities.
During opening statement, the GAL drew the district
court's attention to the insufficiency of Father's
confidential financial affidavit and the lack of supporting
documentation. She stated:
I would like to bring one more matter before the Court that I
would ask the Court take into consideration, which is a
confidential financial affidavit by [Father] was filed very,
very late in this case, and so really not allowing for the
time to really deeply analyze or investigate, but I would
like the Court to take judicial notice that he did not
provide a 2016 tax -- his taxes, nor did he provide a[n] . .
. independent statement. And from his own admissions, I
believe that [Father] will testify that he is also the owner
of the Arsenio Lemus Holdings, LLC, and there has been no
reporting with regard to the income that he receives from
Also, [Father] had indicated to me that he also is part owner
in an establishment, a bar here in town, and I've gotten
-- no disclosures have been made, and I believe I would like
to ask the Court to consider whether or not we need to delay
a decision with regard to child support until a proper
confidential financial affidavit may be brought before the
district court stated it would "certainly return to that
question before taking the matter under advisement." In
the end, though, the district court determined child support
without requiring more information about Father's
Father did not testify about his financial status during his
direct examination. On cross-examination, Father testified he
had interests in several companies, including Laramie Valley
Contracting, Arsenio Lemus Holdings, and Opportunity Knocks.
He did not explain the business structure of any of these
companies, although a handwritten note which appears to have
been added to the confidential financial affidavit identifies
Laramie Valley Contracting as a corporation. He testified his
companies were "pass through" entities for income
tax purposes. Father said that, given the pass-through
nature of his businesses, all of his income was reported on
his personal tax returns.
As part of his business dealings, Father owns approximately
50 rental units. The GAL questioned ...