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MSC v. MCG

Supreme Court of Wyoming

May 31, 2019

MSC, II, Appellant (Petitioner),
v.
MCG, Appellee (Respondent).

          Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

          Representing Appellant: MSC, II, pro se.

         Representing Appellee: No appearance.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          GRAY, J., delivers the opinion of the Court; FOX, J., files a concurring in part and dissenting in part opinion, in which DAVIS, C.J., joins.

          GRAY, JUSTICE.

         [¶1] Father appeals the denial of his W.R.C.P. 60(b)(6) motion for relief from an income withholding order. Father also challenges the district court clerk's assessment of an $85.00 fee pursuant to Wyo. Stat. Ann. § 5-3-206(a)(vii). We affirm.

         ISSUES

         [¶2] We address the following issues:

I. Did the district court err in denying the W.R.C.P. 60(b)(6) motion seeking relief from an income withholding order?
II. Was the $85.00 fee under Wyo. Stat. Ann. § 5-3-206(a)(vii) properly assessed when no transcripts were requested?

         FACTS

         [¶3] On December 19, 2012, the district court entered an order establishing custody and support for the parties' two minor children, apparently based on a hearing that occurred on September 4, 2012.[1] Each of the parties was represented by counsel. The district court waived the requirement that the parties file financial affidavits. It did not determine a statutorily presumed amount of child support, but did find that "[d]eviation from the child support guidelines is necessary[.]" The district court found that Father was incarcerated, "and is not scheduled to be released until late November, 2012" and was "not realistically able to earn imputed income." The district court found that it was in the children's best interests that Father pay the statutory minimum child support-fifty dollars per month-pursuant to Wyo. Stat. Ann. § 20-2-304(b) (LexisNexis 2011).[2] As required, the district court also entered an income withholding order. Wyo. Stat. Ann. § 20-6-204(a) (LexisNexis 2011).

         [¶4] On April 2, 2018, more than five years after the Order Establishing Custody and Support was entered, Father, relying on W.R.C.P. 60(b)(6), filed a pro se motion entitled "Petitioner's Motion for Relief from Child Support Order." However, that motion asked the district court "to relieve him from the Income Withholding Order, filed December 19, 2012

         [¶5] Father contended that the minimum support obligation under Wyo. Stat. Ann. § 20-2-304(b) (LexisNexis 2011) facially contradicts 42 U.S.C. § 667(b)(2). This section of the federal statutes establishes a "rebuttable presumption" that the amount calculated for support under state guidelines is the appropriate amount. 42 U.S.C.A. § 667(b)(2) (West 2011). In his motion, Father argued Wyo. Stat. Ann. § 20-2-304(b) creates an irrebuttable presumption in violation of the supremacy clause of the United States Constitution. U.S. Const. art. VI, cl. 2; Wyo. Stat. Ann. § 20-2-304(b) (LexisNexis 2011). The Wyoming Legislature repealed Wyo. Stat. Ann. § 20-2-304(b) on July 1, 2018. 2018 Wyo. Sess. Laws Ch. 42.

         [¶6] No responsive pleading was filed, and the district court did not rule on Father's motion for relief. Accordingly, Father's motion was "deemed denied" under W.R.C.P. 6(c)(4).[3] Father appealed. The district court clerk charged the $85.00 fee required by Wyo. Stat. Ann. § 5-3-206(a)(vii). Father objected, claiming that because no transcripts were necessary for his appeal, the fee was improperly assessed. On appeal, Father asserts that mandatory minimum child support is unconstitutional, and he challenges the propriety of the $85.00 fee.

         [¶7] Mother, who would receive any child support Father paid, did not participate at the trial court level or in this appeal. On being served with a copy of Appellant's brief pursuant to W.R.A.P 7.07, the Wyoming Attorney General's office responded to Father's claim that Wyo. Stat. Ann. § 20-2-304(b) is unconstitutional by asserting that because "Appellant's challenge is to the income withholding order and not the original child support order, it does not affect a substantial right and is not appealable." The trial court ordered Child Support Services of Wyoming and the Laramie County Attorney to respond to Father's objection to paying the filing fee. Child Support Services responded that it was not involved in this case. The Laramie County Attorney filed a response asserting that Wyo. Stat. Ann. § 5-3-206(a)(vii) required the filing fee. The record does not contain any decision from the district court on the filing fee issue. Father did not name Laramie County or the Laramie County Clerk of District Court as Appellees, and no one responded to Father's claim that he should not have been charged a filing fee in this Court.

         DISCUSSION

         I. Did the district court err in denying the W.R.C.P. 60(b)(6) motion seeking ...


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