Harris v. Harris

Harris v. Harris
1997 WY 128
948 P.2d 405
Case Number: 97-50
Decided: 11/18/1997
Supreme Court of Wyoming

EDWARD HARRIS, 

Appellant(Defendant),

 

v.

 

RUTH HARRIS, 

Appellee(Plaintiff).

 

Appeal from the District Court of Laramie County 

The Honorable Nicholas G. Kalokathis, Judge

 

 

Billie Ruth Edwards, Cheyenne, for Appellant.

 Donald A. Cole of Cole and Cole, Cheyenne, for Appellee.

 

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

GOLDEN, Justice. 

[¶1]      Appellant Edward Harris' motion for modification and Appellee Ruth Harris' motion that appellant be held in contempt for violations of their divorce decree were heard before a district court commissioner, which made findings and recommendations to the district court. Mr. Harris objected to the commissioner's report, but those objections were ruled to be without merit by the district court, which entered an order accepting the report in its entirety. Mr. Harris appeals.

 

[¶2]      We hold that Mr. Harris may file a new motion for modification and affirm the district court's order of contempt.

 

ISSUES

 

[¶3]      Mr. Harris presents these issues:

 

1. Did the court err as a matter of law, or abuse its discretion, in approving the court commissioner's order of withdrawal of a substantive pleading?

 

2. Were the actions of the court, taken in their entirety and including the extension of power to the

court commissioner to order incarceration, so fundamentally unfair as to deny the Appellant due process of law?

 

Mrs. Harris views the issue to be:

 

Was it harmless error, if any, for the Court Commissioner to order the withdrawal of the Appellant's Motion to Modify Divorce Decree?

 

FACTS

 

[¶4]      The parties were divorced on February 7, 1996. That decree ordered Mr. Harris to pay for moving Mrs. Harris' household items to Maryland and ordered him to pay alimony and child support and maintain dental insurance for his child. On March 28, 1996, Mr. Harris moved to modify the decree of divorce by reducing the alimony and child support payments. Mrs. Harris' answer opposed the motion and included a motion that Mr. Harris be held in contempt for child support and alimony arrearage and failure to comply with the part of the divorce decree ordering that Mr. Harris pay for dental coverage for the parties' minor child and all of Mrs. Harris' moving costs to Maryland not assumed by the government.

 

[¶5]      After the divorce, Mr. Harris was transferred from Wyoming to Colorado by the United States Air Force, and Mrs. Harris moved to Maryland. Mrs. Harris was granted permission to testify at the hearing on the modification motion by telephone. Mr. Harris appeared at a hearing set for May 8, 1996, but it was continued. Without Mr. Harris being present, a new hearing date was scheduled; however, Mr. Harris' commitments to the Air Force caused him to request a continuance. In a letter filed May 28, 1996, the district court commissioner notified Mr. Harris' counsel that he had improperly secured the continuance without a court order and informed counsel that further violations of the court's rules concerning continuances would not be tolerated. A new hearing was set for June 11, 1996, but was properly continued until August 13, 1996, at the request of Mrs. Harris.

 

[¶6]      Counsel for Mr. Harris notified the court that Mr. Harris had received temporary duty orders (TDY) by the Air Force that would make him unavailable for hearing on August 13 and requested a continuance as authorized by federal law in the Soldiers and Sailors Civil Relief Act. On August 6, Mrs. Harris objected to the continuance on the basis that Mr. Harris' affidavit was deficient. A copy of Mr. Harris' travel orders were then filed with the court on August 12, 1996, indicating that Mr. Harris would be on temporary duty in Utah from August 12 until August 15, 1996. On August 12, the commissioner held a hearing on the continuance, noted that Mr. Harris and Mr. Harris' attorney had failed to appear and denied the motion for a continuance. On the same day, the commissioner entered an order stating that Mr. Harris withdrew his motion for modification of the divorce decree at the request of Mr. Harris' counsel. Mr. Harris' counsel denied submitting such a motion and later said that he had been out of town from August 3 until August 11.

 

[¶7]      The commissioner, however, held a hearing on August 13, 1996, and counsel for Mr. Harris was present. The motion for continuance was renewed and argued by Mr. Harris' counsel and was denied. In a report dated August 16, 1996, the commissioner considered the purpose of the federal Soldiers and Sailors Civil Relief Act and determined that Mr. Harris had not properly complied with it. The commissioner heard testimony from Mrs. Harris and, in his order, granted permission to Mr. Harris to testify on September 11, 1996. The August 16 order contains a handwritten interlineation prohibiting Mr. Harris from testifying by telephone. This change is initialed but is unreadable, and it is not dated. On August 19, Mr. Harris again received temporary duty orders to Minot, North Dakota, for September 9, 1996, to September 14, 1996. On August 27, 1996, Mr. Harris moved to testify by telephone.

 

[¶8]      On September 9, 1996, the commissioner entered an order for the August 13, 1996, hearing. That order stated that Mr. Harris would not be allowed to appear by telephone at the September 11, 1996, hearing. That same day, the commissioner ordered that Mrs. Harris would be allowed to testify by telephone. Mr. Harris requested and received relief from the TDY assignment and was then able to appear at the September 11, 1996, hearing.

 

[¶9]      The September 11, 1996, hearing took place with Mr. Harris appearing at it, and the sole issue before the commissioner was whether Mr. Harris should be held in contempt. The commissioner determined that Mr. Harris had not paid for Mrs. Harris' moving costs as ordered by the divorce decree, he had not maintained dental insurance for his son as ordered, and he was in arrears for child support and alimony. He recommended that Mr. Harris be held in contempt and receive a suspended sixty day sentence in county jail.

 

[¶10]   Mr. Harris specifically objected to numerous portions of this report and requested the district court find the commissioner was biased and erred in its evaluation of the evidence and erred in not hearing Mr. Harris' request for modification. Mr. Harris further requested that the district court conduct its own hearing and grant the modification. The district court found no merit to the objections and accepted the report in its entirety.

 

[¶11]   Mr. Harris obtained new legal counsel, and this appeal followed.

 

DISCUSSION

 

Modification

 

[¶12]   Mr. Harris contends that because he did not withdraw his motion to modify his divorce decree and because he objected to that withdrawal, the commissioner's order to withdraw his motion was in excess of statutory authority, and the district court erred in finding the report complete and then adopting it.

 

[¶13]   The report of the commissioner dealt only with the issue of Mr. Harris' contempt. The district court accepted that report and issued an order that Mrs. Harris' motion to find Mr. Harris in contempt was granted. The order did not address or make any rulings on Mr. Harris' motion to modify the decree. Since his motion has not been heard or ruled upon, nothing prevents Mr. Harris from again filing a petition to modify the divorce decree.

 

Contempt

 

[¶14]   Mr. Harris contends that the commissioner's actions indicated bias and anger when he refused to grant a continuance, ordered the withdrawal of the motion for modification, and ignored evidence that Mr. Harris presented. Mr. Harris claims that he was not in arrears in either child support, alimony, or attorney fees; he had removed the child from his dental insurance at Mrs. Harris' request; and he had paid for the move to Maryland, but the amount owing was for storage which Mrs. Harris had voluntarily incurred. He contends that the evidence showed that he had not violated the divorce decree. He contends that the district court's refusal to grant him a hearing before it is a denial of due process.

 

[¶15]   In Wyoming, the constitution and statute authorize district courts to appoint court commissioners to perform limited functions. Foster v. Foster, 768 P.2d 1038, 1041 (Wyo. 1989). In clarifying the limited role of a court commissioner, we have decided that a court commissioner is without jurisdiction to adjudge a party guilty of contempt or hear the merits of a case upon application for a change of judge. Mau v. Stoner, 76 P. 584, 588, 12 Wyo. 478, 492 (1904); Huhn v. Quinn, 128 P. 514, 517, 21 Wyo. 51, 61 (1912). We have decided that a court commissioner may take evidence, make findings and report the same to the district court in divorce modification and divorce contempt proceedings. Foster, 768 P.2d at 1042; Gaines v. Doby, 773 P.2d 442, 446 (Wyo. 1989). We have also ruled that a district court must independently review the evidence de novo and issue an order based upon that independent review. Foster, 768 P.2d at 1041. In this case, the court's decision letter stated it had reviewed all evidence and found the objections to be without merit. It did not specify its reasoning.

 

[¶16]   The issue of the order of withdrawal has already been dealt with in the above section, and our review of the record indicates that the district court commissioner accurately reported the evidence he received in the two hearings that he conducted. That report included each of the specific dollar amounts Mr. Harris claimed to have paid for support and costs and included Mr. Harris' explanation why he was no longer providing insurance for his son. The testimony concerning the payments that he had actually made conflicted. That conflict was resolved by the commissioner comparing the payment receipts with the amount owed and determining that Mr. Harris was in arrears. We find no error. The district court correctly determined that the reason Mr. Harris no longer had dental insurance on his son was not relevant and correctly affirmed the commissioner's finding that the divorce decree required Mr. Harris to maintain dental insurance for his son and removing him from coverage was a violation of the court order. Mrs. Harris testified that the military refused to release her furnishings to her because Mr. Harris failed to timely supply her with authorization. Because no authorized individual had paid the costs not paid by the military and claimed the furniture, it had been placed in temporary storage. The evidence supports the district court's determination that the amount owing on the furniture was to be paid by Mr. Harris as ordered by the divorce decree.

 

[¶17]   The commissioner's report indicates that it did not ignore Mr. Harris' evidence. The district court's order is supported by the evidence and is affirmed.