author: HILL, Chief Justice.

text:
    2003 WY 120
    Randy MORGANFLASH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-103.
    Supreme Court of Wyoming.
    Sept. 24, 2003.
    Representing Appellant: Donna D. Do-monkos, Appellate Counsel, Public Defender's Program and Mary B. Guthrie, Cheyenne, Wyoming.
    Representing Appellee: Hoke MacMillan, Wyoming Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Deputy Attorney General.

      Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Order allowing counsel to withdraw entered on March 4, 2003.

   HILL, Chief Justice.

[11] Appellant, - Randy - Morganflash (Morganflash), was convicted of one count of second-degree sexual assault, one count of third degree sexual assault, and one count of indecent liberties with a minor. He contends that the district court erred in determining that the five-year-old female victim (NR) was competent to testify, that the district court erred in denying his motion for a new trial, and that the district court erred in denying him a formal "taint" hearing with respect to NR's testimony. We will affirm.

ISSUES

[12] Morganflash raises these issues for our resolution:

I. Whether the trial court erred when it concluded that NR was competent to testify.
II. Whether the trial court erred when it denied [Morganflash's] motion for a new trial.
III. Whether the trial court erred by not conducting a formal "taint" hearing.

The State describes these issues:

I. Did the district court correctly rule that NR was competent to testify, and was it proper to deny [Morganflash's] motion for a new trial based on that ground?
II. Did the district court properly deny [Morganflash's] motion for a separate "taint" hearing regarding NR?

FACTS

[13] The victims in this case are NR and her three-year-old brother (TR). The mother of the victims met Morganflash in late January or early February of 2001. After knowing him for about a week, she asked him to move in with her family. Mother was aware that Morganflash was unemployed and had only recently been released from prison where he had served time for a sex offense. Mother worked two jobs that encompassed as much as 16 hours of her day, and Morgan-flash watched her children while she was at work. The issues raised in this appeal do not necessitate a detailed description of the criminal conduct for which Morganflash was convicted. It suffices to note that Morganflash engaged the two victims in sexual conduct proscribed by Wyoming's criminal code.

[T4] The nature of the misconduct came to light because NR was not performing well at school and because of her poor performance, as well as some behavior problems, she was being evaluated to determine what the cause or causes might be. In addition, an inquiry was made when a school employee observed Morganflash giving NR an open-mouthed "lingering" kiss when he dropped her off for school. This process was ongoing during the first five months of 2001. In May 2001, NR revealed that both she and her little brother were the objects of sexual abuse by Morganflash. NR testified at trial and repeated essentially the same information as that she had revealed to a Department of Family Services investigator and to a psychologist who was treating NR and TR during this time period.

[T5] The district court conducted a hearing to determine whether the two victims were competent to testify. It found that NR was competent to testify, but that TR was not. In addition, Morganflash requested that the district court conduct a "taint" hearing to determine whether the questioning of NR had been so suggestive and leading as to undermine the accuracy of NR's memory of the erucial events. The district court denied Morganflash's motion for a taint hearing on the basis that he did not meet the threshold requirement of presenting "some evidence" of taint.

Competence of NR and Need for Separate "Taint" Hearing

[16] Morganflash contends that NR was not competent to appear as a witness and that the district court erred in finding her to be competent. Because this issue continues to appear with regularity, especially in appeals regarding child molestation cases, we repeat at length our seminal decision collecting and analyzing our jurisprudence with respect to competency hearings and the associated "taint" issue:

The Wyoming Rules of Evidence provide that "[elvery person is competent to be a witness except as otherwise provided in these rules." W.R.E. 601. "A person is generally competent to testify if he can understand, receive, remember and narrate impressions and is sensible to the obligations of the oath taken before testifying." Simmers [v. State], 943 P.3d [1189] at 1199 [(Wyo.1997)]; Larsen v. State, 686 P.2d 583, 585 (Wyo.1984). "Intelligence, not age, is the guiding criteria in determining the competency of a witness." Baum v. State, 745 P.2d 877, 879 (Wyo.1987). -It is a well-established principle of law that competency of witnesses to testify is a question within the sound discretion of the trial court. Selby v. Savard, 134 Ariz. 222, 655 P.2d 342, 347 (1982); People v. Estorga, 200 Colo. 78, 612 P.2d 520, 524 (1980); State v. Joblin, 107 Idaho 351, 689 P.2d 767, 771 (1984), State v. Howard, 247 Mont. 370, 806 P.2d 1038, 1039 (1991). However, when children are called into the courtroom to testify, we have held that once the child's competency is called into question by either party, it is the duty of the court to make an independent examination of the child to determine competency, and that determination will not be disturbed unless shown to be clearly erroneous. Burt v. Burt, 48 Wyo. 19, 41 P.2d 524, 525 (1935) (quoting 5 Jones Commentaries on Evidence 3958, 3959, § 2107 (2d Ed.)). See also Punches v. State, 944 P.2d 1131, 1136 (Wyo.1997); Trujillo v. State, 880 P.2d 575, 579 (Wyo.1994); Baum, 745 P.2d at 879; and Larsen, 686 P.2d at 585.
We have directed the district courts to utilize a five-part test for determining the competency of child witnesses:
"(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (8) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it."
Larsen, 686 P.2d at 585 (quoting State v. Allen, 740 Wash.2d 690, 424 P.2d 1021 (1967)).
The New Jersey Supreme Court, prompted by its recognition that children can be susceptible to suggestive interview techniques and that such techniques can undermine the reliability of a child's account of actual events, adopted a procedure termed a "taint hearing." [State v.] Michaels, [136 N.J. 299] 642 A.2d [1372] at 1382-84 [(1994)].
The [New Jersey] Supreme Court held that a pretrial "taint" hearing was the appropriate method of determining whether the investigatory interrogations and interviews "were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt." * * * The Court held that the initial burden of triggering the taint hearing is on the defendant, who must make a showing of "some evidence" that the victim's statements were the result of suggestive interview - techniques. * ook ock
The factors that should be considered in assessing the reliability of a complaint regarding sexual offenses are:
"(1) the age of the victim; (2) circumstances of the questioning; (8) the vie-tim's relationship with the interrogator; and (4) the type of questions asked." * * * Undue suggestiveness can occur when an interviewer has a preconceived notion of what has happened to a child, the interviewer uses leading questions, the interviewer is a trusted authority figure, the person accused of wrongdoing is vilified during the interview, or the interviewer uses threats or rewards to pressure the child.
State v. Scherzer, 801 N.J. Super. 363, 694 A.2d 196, 245-46, cert. denied, 151 N.J. 466, 700 A.2d 878 (1997) (summarizing and quoting Michaels, 642 A.2d at 1377-1383).
While we agree with the reasoning of the New Jersey Supreme Court, we conclude that there is no void in Wyoming law which a "taint hearing" procedure would fill. The Washington State Supreme Court considered the issue in Matter of Dependency of A.E.P., 135 Wash.2d 208, 956 P.2d 297 (1998), and found that the competency inquiry included the question of pretrial taint. That court also utilizes the five-part test to determine the competency of child witnesses:
"The true test of the competency of a young child as a witness consists of the following: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (8) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it."
Id. at 304 (quoting Allen, 70 Wash.2d 690, 424 P.2d 1021). Recognizing the overlap in competency and taint considerations, the Washington State Supreme Court said:
We decline to adopt a pretrial taint hearing as a requirement for the reason that the existing state of the law adequately addresses Petitioner's concerns. As to the reliability of a child's testimony, a defendant can argue memory taint at the time of the child's competency hearing. If a defendant can establish a child's memory of events has been corrupted by improper interviews, it is possible the third Allen factor, "a memory sufficient to retain an independent recollection of the occurrencel,1" may not be satisfied.
Matter of Dependency of A.E.P., 956 P.2d at 307 (quoting Allen, 70 Wash.2d 690, 424 P.2d 1021). We similarly decline to adopt a separate pretrial "taint hearing" procedure as the concerns addressed by such a procedure can be adequately addressed during the competency hearing which we have required since 1985. We do, however, endorse the use of the factors set out in the Michaels decision as they relate to the question of independent recollection.

English v. State, 982 P.2d 139, 145-46 (Wyo.1999) (alterations in original); and see Alicea v. State, 13 P.3d 693, 697 (Wyo.2000); Billingsley v. State, 2003 WY 61, ¶¶ 10-13, 69 P.3d 390, ¶¶ 10-13 (Wyo.2003); Wilde v. State, 2003 WY 93, ¶ 7, 74 P.3d 699, ¶ 7; and Seward v. State, 2003 WY 116, ¶ 30, 76 P.3d 805, ¶ 30 (Wyo.2003).

[T7] Morganflash asserts that a careful examination of NR's testimony, both at the competency hearing and at trial, demonstrates that she was not competent to testify as a witness. We do not agree. Our searching examination of her testimony, which we do not feel the need to set out in detail here, obliges this Court to conclude that the district court's resolution of the factual elements of the standard of review set out above was not clearly erroneous and was within the sound discretion of the trial court. While NR's responses may have been at or near the margins of competency for a child of her age, she was able to adequately meet the minimum criteria set out in the standard of review quoted above. The cases cited above demonstrate the need for more patient, focused, and thorough questioning of child witnesses, using terminology more readily understandable to children of tender years. A useful guide is found at Manuel E. Nestle, Qualifying Child Witness to Testify, 35 Am. Jur. POF2d 665-689 (1983 and Supp.2001 at 147-77); also see Michael D. Pursell, Defense to Charges of Sex Offense, 24 Am.Jur. POF2d 515, §§ 27-31 (1980 and Supp.2001 at 122-28).

[T8] Morganflash also challenges the trial court's decision to deny his motion for a separate "taint" hearing. As set out more fully above, such a "taint" hearing is required only if a defendant comes forward with "some evidence" that taint is present. Morganflash accepts that he did not come forward with information sufficient to meet the "some evidence" standard, but asserts that he was unable to do so because none of the sessions wherein NR was questioned or counseled were tape recorded or audio/video recorded. The transcripts reveal that the sessions in which NR made her revelations were not recorded for good reasons, and in one instance the recording device failed to work properly. Moreover, cogent argument or pertinent authority to the effect that failure to record such sessions is error, or is other than a defensible policy, does not support these contentions. A comprehensive review of the transcripts "after the fact," discloses that those who interviewed NR did not taint her recollection of the crucial events, and that Morganflash's contentions were, indeed, speculation. The district court did not abuse its discretion in denying the separate "taint" hearing.

Motion for New Trial

[T9] Morganflash contends that the "interests of justice" mandated that the district court grant his motion for new trial. W.R.Cr.P. 33 (emphasis added) provides:

(a) In general.-The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. If trial was by the court without a jury, the court, on motion of a defendant for a new trial, may vacate the judgment if entered, take additional testimony, and direct the entry of a new judgment.
(b) Any grounds except newly discovered evidence.-A motion for a new trial based on any grounds, except newly discovered evidence, shall be made within 15 days after verdict or finding of guilty or within such further time as the court may fix during the 15 day period; but the time for filing the motion may not be extended to a day more than 30 days from the date the verdict or finding of guilty is returned. The motion shall be determined and a dispositive order entered within 15 days after the motion is filed and if not so entered shall be deemed denied, unless within that period the determination shall be continued by order of the court, but no continuance shall extend the time to a day more than 60 days from the date the ver-diet or finding of guilty is returned.
(c) Newly discovered evidence -A motion for a new trial based on the grounds of newly discovered evidence may be made only before or within two years after final judgment but if an appeal is pending, the court may grant the motion only on remand of the case. A motion for new trial based on the ground of newly discovered evidence shall be heard and determined and a dispositive order entered within 30 days after the motion is filed unless, within that time, the determination is continued by order of the court, but no continuance shall extend the time to a day more than 60 days from the date that the original motion was filed. When disposition of a motion for new trial based on newly discovered evidence is made without hearing, the order shall include a statement of the reason for determination without hearing.

[110] The basis for the new trial motion was, in large part, an iteration of the contention that NR was not competent to testify and we will not repeat those assertions here, as they are well summarized above.

[T11] A trial court has discretion in determining whether to grant a motion for new trial. In determining whether the trial court abused its discretion, we must decide whether the court could have reasonably concluded as it did. Baumgartner v. State, 7 P.3d 912, 915 (Wyo.2000) (internal citations omitted). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. Anderson v. State, 2002 WY 46, ¶ 25, 43 P.3d 108, ¶ 25 (Wyo.2002) (citing Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)); also see State v. Vinson, 183 Wis.2d 297, 515 N.W.2d 314, 320-21 (App.1994).

[112] Having concluded that the district court did not err in determining that NR was competent to appear as a witness, it follows that we must conclude that the denial of the motion for new trial on that same basis was not an abuse of discretion.

CONCLUSION

[113] The district court did not err in determining that NR was competent to serve as a witness, nor did it err in denying a motion for new trial on that same ground. The district court did not err in refusing to conduct a separate "taint" hearing. For these reasons the judgment and sentence of the district court is affirmed.

      . Wyo Stat. Ann. § 6-2-303 (LexisNexis 2003) (emphasis added) provides:
      § 6-2-303. Sexual assault in the second degree.
      (a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
      (i) The actor causes submission of the victim by threatening to retaliate in the future against the victim or the victim's spouse, parents, brothers, sisters or children, and the victim reasonably believes the actor will execute this threat. "To retaliate" includes threats of kidnapping, death, serious bodily injury or extreme physical pain;
      (ii) The actor causes submission of the victim by any means that would prevent resistance by a victim of ordinary resolution;
      (iii) The actor administers, or knows that someone else administered to the victim, without the prior knowledge or consent of the victim, any substance which substantially impairs the victim's power to appraise or control his conduct;
      (iv) The actor knows or should reasonably know that the victim submits erroneously believing the actor to be the victim's spouse;
      (v) At the time of the commission of the act the victim is less than twelve (12) years of age and the actor is at least four (4) years older than the victim;
      (vi) The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit; or
      (vii) The actor inflicts sexual intrusion in treatment or examination of a victim for purposes or in a manner substantially inconsistent with reasonable medical practices.
      (b) A person is guilty of sexual assault in the second degree if he subjects another person to sexual contact and causes serious bodily injury to the victim under any of the circumstances listed in W.S. 6-2-302(a)(i) through (iv) or paragraphs (a)) through (vi) of this section.

      . Wyo. Stat. Ann. § 6-2-304 (LexisNexis) (emphasis added) provides:
      § 6-2-304. Sexual assault in the third degree.
      (a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:
      (i) The actor is at least four (4) years older than the victim and inflicts sexual intrusion on a victim under the age of sixteen (16) years; or
      (ii) The actor is an adult and subjects a victim under the age of fourteen (14) years to sexual contact without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim;
      (iii) The actor subjects a victim to sexual contact under any of the circumstances of W.S. 6-2-302(a)(i) through (iv) or 6-2-303(a)(i) through (vi) without inflicting sexual intrusion on the victim and without causing serious bod-fly injury to the victim.

       Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2003) provides:
      § 14-3-105. Immoral or indecent acts; penalty.
      (a) Except under circumstance constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-302 through 6-2-304, any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony. Except as provided by subsection (b) of this section, a person convicted under this section shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.
      (b) An actor convicted under subsection (a) of this section shall be punished by life imprisonment without parole if:
      (i) The circumstances of the crime involve a victim who was under the age of sixteen (16) at the time of the offense and an actor who was at least four (4) years older than the victim; and
      (ii) The actor has two (2) or more previous convictions for any of the following designated offenses, which convictions resulted from charges separately brought and which arose out of separate occurrences in this state or elsewhere:
      (A) A conviction under W.S. 6-2-302 through 6-2-304 or a criminal statute containing the same or similar elements as a crime defined by W.S. 6-2-302 through 6-2-304;
      (B) Repealed by Laws 1997, ch. 135, § 2, eff. July 1, 1997.
      (C) A conviction under W.S. 14-3-105(a), or a criminal statute containing the same or similar elements as the crime defined by W.S. 14-3-105(a), if the circumstances of the crime involved a victim who was under the age of sixteen (16) at the time of the offense and an actor who was at least four (4) years older than the victim.
      (c) As used in this section, "child" means a person under the age of eighteen (18) years.


source: Caselaw Access Project

author: GOLDEN, Justice. VOIGT, Justice, dissenting,

license: Public Domain

text:
    2003 WY 121
    K.C. James READY, Appellant (Defendant), v. Janelle Louanne READY, Appellee (Plaintiff).
    No. 02-149.
    Supreme Court of Wyoming.
    Sept. 26, 2003.

      Representing Appellant: Sweeny, Worland, Wyoming. Wendy Press
    Representing Appellee: Chris Edwards of Simpson, Kepler & Edwards, LLC, Cody, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] A non-custodial father moved to modify the child support and alimony provisions of his 1998 divorcee settlement and decree. The district court did reduce the father's child support obligation, but still ordered an amount higher than the presumptive statutory amount. The court declined to terminate the father's alimony obligation. The father appeals the alimony and child support orders as well as the court's refusal to make the child support modification retroactive to the date the father filed his motion. Finding no abuse of discretion by the trial court, we affirm.

ISSUES

[12] KC. James Ready, the father and appellant, presents the following issues:

I. Did the trial court err in its use of the tax returns in ascertaining child support?
II. Did the trial court err in deviating from the child support guidelines and increasing the child support due and owing by the Appellant?
III. Did the trial court err in refusing to retroactively apply the reduction in child support to the date of the petition being served on the Appellee?
IV. Did the trial court err in refusing and failing to modify the decree of divorcee as to the payment of alimony?

[13] Janelle Louanne Zinn, mother and ap-pellee, states the issue as whether the trial court abused its discretion in any of the four areas presented by the father.

FACTS

[14] KC. James Ready (father) married Janelle Louanne Ready, now known as Janelle Louanne Zinn (mother) in 1981. They divorced in 1998. The divorce decree incorporated the parties' settlement agreement and awarded custody of their three children-then ages 15, 13 and 11-to their mother. The father was granted visitation and ordered to pay child support of $709 per month, plus $200 per month alimony until the youngest child graduates from high school in June of 2005.

[T5] Before the divorcee, the father was employed in Cody, Wyoming, as a branch manager for a grocery store chain. He earned $38,000-$50,000 per year with bonuses. The mother, who has a bachelor's degree in elementary education and an associate's degree in music, was self-employed as a daycare provider and piano teacher. She earned less than $12,000 in the year before the divorcee. As part of the divorce settlement, the mother was awarded the family home in Cody, while the father moved to his family's farm in Thermopolis, Wyoming.

[16] Both parties have changed their employment since the divorce. The father became a grocery store branch manager in Worland, but was terminated at the end of 1998 after he was hurt in a fall from a horse. The store has since closed, and the father has not sought work again in that occupation. At the time of the modification hearing he was an apprentice electrician in training to become a journeyman electrician. He also worked odd jobs and was renovating a home for re-sale. The mother took a job in a doctors' office immediately after the divorcee decree in September 1998 and was earning $10 per hour, with insurance benefits, in 2001. Just before the modification hearing, she went to work for the State of Wyoming at $13.50 per hour with no fringe benefits. She remarried in July 2001.

[17] The parties' oldest son turned 18 in 2001 and is attending college. His mother testified that she would have to provide him with approximately $125 per month to assist with his college expenses. She also spends one to two hours per day tutoring the second child, who is hearing impaired.

[T8] Upon the father's motion for modification, the district court terminated the father's child support obligation for the oldest son. The court then calculated the presumptive level of support for the two remaining minor children using the parties' 2000 income as the most representative of their current earning ability. The court determined the father's 2000 earnings were approximately $19,500, and that his $2,036 refund of 1999 taxes received in 2000 should also be counted as income because it represented over-withholding. His monthly average income was therefore $1,800. The court found the mother's income to be $1,508 per month and determined that her tax refund should not be counted because it was due to her charitable contributions.

[19] Using those income figures, the district court determined the presumptive level of support under the governing statute to be $470 but also determined that deviation upward to $635 was appropriate based upon six other factors, including:

® the father's choice to reside in an economically depressed area where work in his profession is unavailable;
® the special healthcare and educational needs of the parties' second child;
@the mother's contribution of tutoring services for their hearing-impaired son;
® the father's failure to exercise his right to overnight visitation with his daughter;
ethe mother's cash assistance to the oldest son in college;
@the father's expectation of eventual profit from the house he is renovating.

[110] The court also declined to terminate the father's $200 per month alimony obligation because it was part of a comprehensive property and child custody agreement, because the alimony is to terminate on a specific date, and because the agreement "was also apparently geared to a consideration of the needs of the children of the parties."

STANDARD OF REVIEW

[111] Our role in reviewing petitions to modify child support is well established:

There are few rules more firmly established in our jurisprudence than the proposition that disposition of marital property, calculation of income for child support purposes, and the granting of alimony are committed to the sound discretion of the district court. Johnson v. Johnson, 11 P.3d 948, 950 (Wyo.2000). Judicial disceretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the cireumstances and without doing so - arbitrarily or capriciously. - Id.; Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). We must ask ourselves whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. Johnson, 11 P.3d at 950. In accomplishing our review, we consider only the evidence in favor of the successful party, ignore the evidence of the unsuccessful party, and grant to the successful party every reasonable inference that can be drawn from the record. Id.

Belless v. Belless, 2001 WY 41, ¶ 6, 21 P.3d 749,¶ 6 (Wyo.2001).

The party seeking modification must establish there has been a material and substantial change in circumstances which outweighs the interest of society in applying the doctrine of res judicata. Pauling v. Pauling, 837 P.2d 1073 (Wyo.1992); Crawford v. Crawford, 828 P.2d 1192 (Wyo.1992); Dorr v. Newman, 785 P.2d 1172 (Wyo.1990); Mentock v. Mentock, 638 P.2d 156 (Wyo.1981). The trial court is vested with discretion to modify the provisions of the divorcee decree and, absent a grave abuse of that discretion, we will not disturb its decision. Parry v. Parry, 766 P.2d 1168 (Wyo.1989); Manners v. Manners, 706 P.2d 671 (Wyo.1985). The standard we apply in review of cases asserting abuse of discretion as an issue is whether the trial court reasonably could have concluded as it did. Rude v. State, 851 P.2d 20 (Wyo.1993), and Parry (both citing Martinez v. State, 611 P.2d 831 (Wyo.1980)).

Pasenelli v. Pasenelli, 2002 WY 159, ¶ 9, 57 P.3d 324, ¶ 9 (Wyo.2002) (quoting Jones v. Jones, 858 P.2d 289, 291 (Wyo.1993)).

This policy manifests a balance between the doctrine of finality of judgments which is supported by the doctrine of res judica-to and the statutes providing for modification of the provisions of a decree relating to child eustody, support, and alimony. The trial court is charged with resolving that tension, and it must do so in the exercise of discretion. The discretion afforded the trial judge is encompassed in Wyo. Stat. § 20-6-802(b). The discretion is guided by a list of thirteen factors, but the final one, "[olther factors deemed relevant by the court * * *," is a classic acknowledgment of judicial discretion.
The child support guidelines identify a base from which the judge must invoke the exercise of discretion. In the absence of an agreement with respect to child support, the guidelines will have a more significant controlling impact. - When an agreement as to child support is involved, however, more weight may be given to the agreement. Child support agreements entered into by the parties are favored by the courts. Beard v. Beard, 368 P.2d 953 (Wyo.1962).

Smith v. Smith, 895 P.2d 37, 41 (Wyo.1995).

DISCUSSION

[112] Child support is calculated pursuant to statute. The first step is to calculate the parents' current monthly net income for application to the presumptive child support tables. Wyo. Stat. Ann. § 20-2-804 (LexisNexis 2008). "Income" and "net income" are defined in Wyo. Stat. Ann. § 20-2-303(a) (LexisNexis 2008) as follows:

(i) "Income" means any form of payment or return in money or in kind to an individual, regardless of source. Income includes, but is not limited to wages, earnings, salary, commission, compensation as an independent contractor, temporary total disability, permanent partial disability and permanent total disability worker's compensation payments, unemployment compensation, disability, annuity and retirement benefits, and any other payments made by any payor, but shall not include any earnings derived from overtime work unless the court, after considering all overtime earnings derived in the preceding twenty-four (24) month period, determines the overtime earnings can reasonably be expected to continue on a consistent basis. In determining income, all reasonable un-reimbursed legitimate business expenses shall be deducted. Means tested sources of income such as Pell grants, aid under the personal opportunities with employment responsibilities (POWER) program, food stamps and supplemental security income (SSI) shall not be considered as income. Gross income also means potential income of parents who are voluntarily unemployed or underemployed;
(iii) "Net income" means income as defined in paragraph (ii) of this subsection less personal income taxes, social security deductions, cost of dependent health care coverage for all dependent children, actual payments being made under preexisting support orders for current support of other children, other court-ordered support obligations currently being paid and mandatory pension deductions. Payments towards child support arrearage shall not be deducted to arrive at net income{.]

[T18] The father first argues on appeal that the district court erred in its use of the parties' most recent tax returns to ascertain their income for determining child support under the statutory guidelines. He claims this violates our ruling in Houston v. Smith, 882 P.2d 240 (Wyo.1994), in which we held that "federal income tax computations differ in significant respects from the computations required by [the child support statute], and the district court erred in substituting the federal income tax concepts to arrive at those critical amounts." Id. at 240-41.

[T14] In Houston, the district court had followed the federal income tax computation by deducting from the obligor's income, as an "unreimbursed legitimate business expense," the amortized depreciation for business property to which obligor was entitled on his federal taxes. Since amortized depre-clation does not directly affect cash flow in later years, we ruled that it was not appropriate, for child support purposes, to recognize the same deduction from income as federal tax law allows. "Since the purpose of depreciation is to assist a person in regaining their expenditures, it does not follow that depreciation is a business expense for the calculation of disposable income under the Guidelines." Id. at 244 (quoting Stewart v. Stewart, 243 Mont. 180, 793 P.2d 813, 815 (1990)) (emphasis in original).

[115] In Watson v. Watson, 2002 WY 180, 60 P.3d 124 (Wyo.2002), we dealt with the other side of that coin and the federal tax provision under 26 U.S8.C.A. § 179 which allows a taxpayer to elect a same-year deduction for certain business property rather than an amortized deduction over a number of years. In calculating income for child support purposes, the district court, based on our ruling in Houston, had not allowed a deduction from income for the Section 179 business expenses. In reversing again, we clarified that the test is whether the business expense affects the obligor's actual cash flow during the year in question, rather than a mere book entry for federal tax purposes. Since the Section 179 property is actually paid for in the same year in which the deduction is allowed, it does affect cash flow in that year and we allowed the deduction for child support purposes. Watson, ¶¶ 14-16.

[116] In neither Houston nor Watson, however, did we state a per se prohibition, as the father in this case implies, on the use of federal tax information as evidence in determining "income" and "net income" under the Wyoming child support statutes. In fact, in all child support proceedings, the parties are required to submit to the court financial affidavits with supporting documentation that includes copies of their most recent tax returns. Wyo. Stat. Ann. § 20-2-808(a), (b) (LexisNexis 2008). The 2000 tax year was the most recent one available at the time of the hearing. A review of the record in this case shows that the court considered the father's receipt of a significant tax refund in 2000 for overpaid 1999 taxes as a matter affecting his cash flow during the year 2000. The father would have us base his child support obligation not on his actual after-tax income, but rather on an income that is artificially reduced by temporary overpayment of taxes. That would not comport with the statutory and case law definitions of income.

[117] The father also complains for the first time on appeal that the court did not take into consideration his unreimbursed business expenses. However, he offered no evidence of any such expenses beyond a general statement that he had costs associated with the remodeling of a home. As we also stated in Watson at 116, "[the burden of proving that an expense was a reasonable unreimbursed legitimate business expense lies with the party seeking the deduction. Erhart v. Evans, 2001 WY 79, ¶ 15, 30 P.3d 542, 546 (Wyo.2001); Fountain v. Mitros, 968 P.2d 934, 938 (Wyo.1998)." The court need not speculate about such expenses where none were claimed. In light of the above, the father has not demonstrated and we cannot say that the trial court exceeded the bounds of reason by using the parties' reported 2000 federal income tax wages as the basis for calculating presumptive child support.

[118] The father next argues that the trial court erred in deviating from the presumptive child support guidelines. The parties' income as determined by the court resulted in a presumptive child support figure of $470 per month. The court, however, exercised its discretion under § 20-2-807 to deviate from that figure, increasing it by $165 to $685 per month. As required by the statute, the court set forth its reasons for the deviation. The father has chosen to reside in an economically depressed area where work in his former profession, at which he earned up to $50,000 per year, is not available. The parties' second son has a hearing disability, requiring additional expense for hearing aids and battery replacement. The mother, who has an education degree, contributes tutoring services for the hearing-impaired son, which otherwise would have to be purchased for him. The father at the time of the hearing was not exercising his right to overnight visitation with his daughter and, although not articulated by the trial court, would therefore not be incurring the additional meal and other incidental expenses he would incur if she were spending time in his home. The mother anticipated providing approximately $125 per month in cash assistance to the oldest son, who is now in college. Finally, the father is renovating a house for re-sale and in that sense anticipates additional self-employment income from the profit on the house. These considerations clearly fall within those factors listed in § 20-2-807 which justify deviation from the presumptive child support level.

[1 19] In Pasenelli, 2002 WY 159, ¶ 11, 57 P.3d 324, ¶ 11 (Wyo.2002), we reiterated that a district court has broad discretion in determining the proper amount of a child support award, and that we will not disturb the trial court's ruling unless there is a clear showing of an abuse of discretion. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireum-stances and without doing so arbitrarily or capriciously. Id. (citing Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)). While another judge or even this Court may have weighed those factors differently and reached a different figure for child support in this case, we cannot conclude from the record that the trial court could not reasonably have concluded as it did.

[¥20] Father next claims error in the trial court's issuing its order prospectively only, even though the father had requested that any reduction in child support be made retroactive to the filing of his motion, as allowed by Wyo. Stat. Ann. § 20-Z2-311(d)(i). Again, this is a decision within the sound discretion of the trial court, one which will be disturbed on appeal only upon a clear showing of abuse. Houston, 882 P.2d at 245. The father alleges unreasonable delay from the filing of his original motion to the date of the court's order. The original petition was filed pro se on November 21, 2000; it was amended in April 2001, after the father obtained an attorney. Hearings were held in June and July 2001, and the court announced its decision from the bench on July 26, 2001. That decision date coincided with the oldest child's 18th birthday, when father was no longer obligated to pay support for him. We cannot conclude that a decision on a petition to modify a divorce decree, entered four months after the amended petition was filed, constituted unreasonable delay, nor that it was an abuse of discretion to make the change effective when one of the children became emancipated.

{121] Finally, the father claims an abuse of discretion in not terminating his alimony obligation. The trial court has authority to revise and alter the alimony provision of a divorce decree. Wyo. Stat. Ann. § 20-2-116 (LexisNexis 2001). Such a revi-gion requires the moving party to demonstrate a substantial change in cireumstances from the time of the divorce to the time of the petition to modify. Dorr v. Newman, 785 P.2d 1172, 1178 (Wyo.1990). In this case, only two years had elapsed between the date of the decree and the date of the original petition to modify.. At the time of the divorce, Mr. Ready had already left the family home in Cody and relocated to Thermopolis. Although he had made more money in some previous years, at the time of the decree his income was found to be $2,270.59 per month. At the time of the modification hearing in 2001, he was making approximately 80% of that amount, with the prospect of improvement upon completion of his electrical apprenticeship.

[122] As with the modification of child support, the decision to modify an alimony provision of a divorcee decree lies with the sound discretion of the trial court and will not be disturbed on appeal absent clear abuse. Belless, 16. We have noted also that " 'the purpose of alimony is to provide a post-divorce substitute for the support provided to a spouse during the marriage, and that an award of alimony requires evaluation of the financial needs of each party and is affected by a determination of child eustody." Carlton v. Carlton, 997 P.2d 1028, 1034 (Wyo.2000) (quoting in part Reavis v. Reavis, 955 P.2d 428, 435 (Wyo.1998)). The trial court was cognizant of this standard, and that the alimony in this case was part of a comprehensive stipulation that encompassed support, property division, assignment of debts and alimony until the youngest child turns eighteen.

[1283] The husband offers evidence that his income has decreased and his ex-wife's increased between the date of the decree and the date of the modification petition. However, we have recognized that it is entirely within the discretion of the trial court to award alimony during a transition period wherein the party requesting alimony may gain special skills, education, or experience to enable the party to raise his or her earning capacity. Belless, ¶ 11 (citing Hendrickson v. Hendrickson, 583 P.2d 1265, 1268 (Wyo.1978)). The trial court may reasonably conclude that that transition was not complete in the first three years after the divorce, especially since it was entirely anticipatable at the time of the agreement that the wife would be improving her earnings during the seven-year alimony period. As in Belless, the husband does not persuade us that the trial court failed to exercise sound judgment or otherwise abused its discretion by providing continuing support to the wife through an award of alimony.

CONCLUSION

[T24] The district court demonstrated sound judgment in drawing conclusions from objective criteria when it calculated child support, when it refused to change child support retroactively, and when it refused to terminate alimony. Our review of the record indicates that the court could have reasonably reached those conclusions. The ruling is therefore not arbitrary or capricious and is affirmed.

VOIGT, Justice, dissenting,

with whom LEHMAN, Justice, joins.

[125] I agree, for the most part, with the majority's analysis and conclusions. I dissent, however, because there are two aspects of the district court's decision that should not receive this Court's approval. First, I do not believe that the custodial parent's income for child support computation purposes should be reduced by charitable contributions. Charitable contributions, which are voluntary, are not of the same nature as the items that statutorily may reduce "income" to "net income." See Wyo. Stat. Ann. § 20-2-308(a)@) and (iii) (LexisNexis 2008). Second, there should not be an upward deviation in the non-custodial parent's child support obligation based on the custodial parent's decision to contribute to an adult child's college expenses. Both with charitable contributions and with college expenses, the effect of the court's order is to force the noncustodial parent partially to fund the custodial parent's unilateral financial decisions.

[126] I would reverse and remand with instructions to the district court to omit these "expenses" when calculating child support.

KIDS AGAINST POLLUTION v. CAL. DENTAL ASSN. Cal. 848 Citeas 76 P.3d 843 (Cal. 2003)

1


author: FABE, Chief Justice.

text:
    Brenda GENARO, Appellant, v. MUNICIPALITY OF ANCHORAGE, Officer K. Ehm, and Officer Brock, Appellees.
    No. S-10681.
    Supreme Court of Alaska.
    Sept. 5, 2003.
    Thomas A. Dosik, Law Office of Thomas A. Dogsik, Anchorage, for Appellant.
    Joyce Weaver Johnson, Assistant Municipal Attorney, and William A. Greene, Municipal Attorney, Anchorage, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

The superior court granted summary judgment to the Municipality of Anchorage on claims filed by pro se litigant Brenda Genaro, based on her deemed admissions stemming from her failure to respond to the Municipality's requests for admissions. Genaro had opposed summary judgment on the ground that she believed the Municipality had already received the requested information from the bankruptcy trustee who had briefly been substituted for her as the real party in interest in the case. Because we conclude that it was an abuse of discretion not to give Genaro the opportunity to withdraw her deemed admissions under Alaska Civil Rule 86(b), we reverse the grant of summary judgment.

II. FACTS AND PROCEEDINGS

Brenda Genaro, acting pro se, filed a lawsuit in December 1999 against the Municipality of Anchorage and two Anchorage police officers, alleging that the two officers had beaten her. Genaro did not pursue the lawsuit, and a notice and order of dismissal was issued in May 2001 declaring that the case would be dismissed pursuant to Civil Rule 4l(e){1)(A) unless good cause to the contrary was shown. Genaro responded that medical and financial difficulties and a "lack of resources to formally accomplish pre-trial proceedings" had prevented her from pursuing the suit. Before she could comply with the court's order to further explain these difficulties, she filed for bankruptcy. She then filed a response explaining the difficulties.

In August 2001 the bankruptey trustee was substituted for Genaro as the real party in interest and the case was restored to the active civil case list. Shortly thereafter, the trustee wrote Genaro a letter requesting that she forward "all documents related to the incident forming the basis for the lawsuit and the injuries suffered." The trustee and the Municipality met to discuss pretrial scheduling, including a plan for discovery. On March 1, 2002, the trustee abandoned the case and Genaro was reinstated as the plaintiff.

On April 18, 2002, the Municipality sent Genaro requests for admissions. Genaro failed to respond to the requests by the due date of May 21, 2002. Nine days later, on May 30, 2002, the Municipality moved for summary judgment, arguing that the court should dismiss all of Genaro's claims because her failure to respond to the requests for admissions meant that the requests were . deemed admitted and conclusively established the Municipality's entitlement to summary judgment. Genaro opposed this motion, arguing that the bankruptcy trustee had complied with the Municipality's requests while the case was in his hands. The court, noting that the requests were sent after the trustee withdrew, granted the Municipality's motion and dismissed Genaro's complaint with prejudice.

Genaro, now represented by counsel, appeals, claiming that the court erred in granting the Municipality summary judgment and dismissing the case. She argues that the court abused its discretion by not informing her of her right to move to withdraw the admissions and by not giving her the opportunity to do so.

III. DISCUSSION

A. - Standard of Review

We review for abuse of discretion a trial court's decisions concerning whether to inform a pro se litigant of the specific defects in a pleading and whether to provide an opportunity to remedy those defects. "We will find an abuse of discretion if our review of the record leaves us with a definite and firm conviction that the [trial court] made a mistake[.]"

B. The Superior Court Had an Obligation To Assist Genaro with the Procedure for Withdrawing Her Admissions and Should Have Permitted Her To Withdraw Them.

Genaro argues that the superior court had a duty to inform her, a pro se litigant, of the option of moving to withdraw her deemed admissions under Civil Rule 36(b). Civil Rule 36(a) provides that failure to respond within thirty days to requests for admissions will result in the matters in the requests being deemed admitted. Rule 36(b) provides that matters admitted are "conclusively established unless the court on motion permits withdrawal or amendment of the admission." The superior court may allow amendment or withdrawal "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits."

We have made clear that "a trial judge has an obligation to inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish." In Breck v. Ulmer, we held that the pro se litigant "should have been advised of the necessity of submitting affidavits to preclude summary judgment, and of the possibility of amending her complaint." In Bauman v. State, Division of Family & Youth Services, we declined "to extend Breck to require judges to warn pro se litigants on aspects of procedure when the pro se litigant has failed to at least file a defective pleading." Similarly, in Coffland v. Coffland, we held that because "[a] pro se litigant must make some attempt to comply with the court's procedures before receiving the benefit of the court's leniency," the trial court had no obligation to be lenient with a pro se litigant who had made "no effort to cooperate with the trial court or to request assistance in complying with its orders."

Although Genaro never made an express request for help from the court on how to undo her deemed admissions or how to rescue her case, she did file a timely opposition to the summary judgment motion. Genaro's "objection" to the Municipality's motion made it apparent that she was attempting to defeat the motion by contesting her deemed admissions. In her "objection," Genaro stated that she believed the Municipality already had the information it was seeking because the bankruptcy trustee had complied with the discovery requests while the case was in his hands. Additionally, she offered to resubmit the information. Genaro's "objection" may have been a "defective pleading" in that it did not mention Rule 86(b), but its purpose was clear.

Even clearer than her "objection" are Ce-naro's numerous statements at the pretrial conference when the court informed her that the requests for admissions were deemed admitted because she had not responded to them. When the court stated that none of the requests for admissions had been answered by Genaro, she interrupted with "But they were, your Honor" and explained that she had submitted the documents to the bankruptey trustee. She explained repeatedly that "[the bankruptey trustee] had already answered his requests for admission," that she had answered the requests for admission "through [the trustee]," that the bankruptcy trustee took over the case and "showed them the evidence that they needed to know," and that the Municipality already "know[s] the information" and "hals] the evidence." She also clearly declared that "if you want requests for admission, the admission is no, I do believe that the cop attacked me, that's the admission, what else do you want?"

While Genaro did not expressly move to withdraw her admissions and did not mention Rule 86(b), we have acknowledged that the rules of court "may be models of clarity to one schooled in the law, [but] a pro se litigant might not find them so." Although we recognize that it is often difficult for a trial court to find the correct balance between the need to remain neutral and impartial and the need to inform pro se litigants of the proper procedures for their attempted actions, we conclude that in this instance it was an abuse of discretion not to inform Genaro of "the proper procedure for the action ... she [was] obviously attempting to accomplish, namely, using a Rule 36(b) motion to preclude summary judgment." Because this would not require "open-ended participation by the court [that] would be difficult to contain," informing Genaro of "the technical defects in [her] pro se pleadings [would not] compromise the superior court's impartiality."

Genaro's situation is one in which withdrawal of her deemed admissions is wholly appropriate. Because "the disputed admission[s] plainly concerned ... key factual issue[s]," as the Municipality's summary judgment motion - essentially | acknowledges, withdrawal of the admissions would subserve the merits of the action. Given the procedural confusion caused by the temporary substitution of the bankruptey trustee as the real party in interest, the fact that the Municipality filed its summary judgment motion only nine days after the deadline for responses to its requests for admissions had passed, and Genaro's stated willingness to submit the information, the Municipality could not show that it would be prejudiced by withdrawal of the deemed admissions. Thus, under Rule 36(b), Genaro should be permitted to withdraw her deemed admissions.

IV. CONCLUSION

Because the superior court had an obligation to inform a pro se litigant clearly indicating that she wanted to withdraw her deemed admissions of the proper procedures for doing so and should have permitted her to withdraw those admissions, we REVERSE the grant of summary judgment and REMAND to the superior court with direction to permit Genaro to withdraw her deemed admissions under Rule 86(b).

      . Genaro had thirty days to respond under Alaska Rule of Civil Procedure 36(a), plus an additional three days under Rule 6(c) because the Municipality mailed the requests to Genaro.

      . Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998); Hughes v. Bobich, 875 P.2d 749, 755 (Alaska 1994).

      . Hughes, 875 P.2d at 755 (quoting City of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska 1987)).

      . The Municipality contends that this issue and several others raised by Genaro go beyond Genaro's list of points on appeal. However, Genaro's points on appeal encompass the claims she actually made, her arguments are adequately briefed, and we can address her arguments "effectively without reviewing untranscribed portions of the electronic record." Alaska Rule of Appellate Procedure 204(e). The Municipality further argues that some of Genaro's claims were not raised below. As explained later in this opinion, the issue whether the trial court should have given Genaro an opportunity to withdraw her admissions was adequately raised below. Because of our resolution of this case, we need not address the other two Genaro claims challenged by the Municipality and therefore need not address the Municipality's contention.

      . Alaska R. Civ. P. 36(b).

      . Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000) (internal quotations omitted).

      . 745 P.2d 66, 75 (Alaska 1987).

      . 768 P.2d 1097, 1099 (Alaska 1989).

      . 4 P.3d at 321; see also Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002) (reiterating that pro se litigant "is expected to make a good faith attempt to comply with judicial procedures and to acquire general familiarity with and attempt to comply with the rules of procedure-absent this effort, he or she may be denied the leniency otherwise afforded pro se litigants") (footnotes omitted).

      . Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998). But see Bauman, 768 P.2d at 1099 (asserting that Civil Rules were "promulgated for the specific purpose of giving fair and reasonable notice to all parties of the appropriate procedural standards that should be uniformly applied when any party, including a pro se litigant, seeks relief in [civil litigation]," and advising that [a) pro se litigant who wants to initiate such an action should familiarize himself or herself with the rules of procedure").

      . Breck, 745 P.2d at 75. The Municipality maintains that Genaro did not need the superior court to inform her of the opportunity under Rule 36(b) to move or withdraw her admissions because the Municipality pointed Genaro to Rule 36 in the instructions accompanying its first discovery request and warned her of the consequences of failing to respond. See Willoya v. State, Dep't of Corrections, 53 P.3d 1115, 1123 (Alaska 2002) (holding that court had no obligation to inform pro se litigant of procedural requirements due to clear evidence in record, including inter alia defendant's mention of requirements in summary judgment motion, that litigant knew requirements). The instructions did not describe the option of withdrawing any deemed admissions, however, and unlike Willo-ya, Genaro made no statements indicating her knowledge of the requirements. Therefore, there is not "clear evidence in the record that [slhe knew the requirements." Id.

      . Bauman, 768 P.2d at 1099.

      . Collins, 957 P.2d at 982.

      . "Each admission either negates an essential element of one or more cause of action alleged in her complaint, establishes that no damages resulted therefrom, or else establishes one or more affirmative defense thereto. There remain, therefore, no genuine issues of material fact necessary to be litigated. ..."

      . See Hughes v. Bobich, 875 P.2d 749, 755-56 (Alaska 1994).

      . Genaro raises two other arguments on appeal. First, Genaro contends that the superior court erred by dismissing the entire case instead of the case against only the Municipality. Genaro notes that only the Municipality moved for summary judgment and only on its own behalf, The Municipality argues that this point was never raised below and that the police officers were not properly served. We need not address this issue because our decision reinstates the case against all defendants. Second, Genaro asserts that the Municipality presented no evidence upon which the superior court could have based its grant of summary judgment. Because we are reversing the grant of summary judgment, we need not consider this argument either.