author: Worswick, J.

text:
    In the MATTER OF the Personal Restraint Petition of Vincent L. FOWLER, Petitioner.
    No. 51029-4-II
    Court of Appeals of Washington, Division 2.
    June 11, 2019
    John Henry Browne, Law Offices of John Henry Browne PS, 801 2nd Ave. Ste. 800, Seattle, WA, 98104-1573, for Petitioner.
    Randall Avery Sutton, Kitsap Co., Prosecutor's Office, 614 Division St., Port Orchard, WA, 98366-4614, for Respondent.
    PUBLISHED OPINION
   Worswick, J.

¶1 Vincent Fowler filed his personal restraint petition (PRP) about five months after the one year period to file his PRP expired. He asserts that the time bar should be equitably tolled because his former counsel failed to communicate with him and subsequently resigned from the Washington State Bar Association (WSBA) in lieu of discipline. We dismiss Fowler's PRP as untimely.

FACTS

¶2 Fowler was accused of sexually assaulting two children, and was convicted of two counts of first degree child molestation and one count of first degree rape of a child. The trial court imposed discretionary legal financial obligations (LFOs). Fowler appealed.

¶3 On August 18, 2015, Division Three of this court affirmed Fowler's convictions on direct appeal. State v. Fowler , No. 33227-6-III, slip op. at 1, 2015 WL 4911843 (Wash. Ct. App. Aug. 18, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/332276.unp.pdf. On September 16, Fowler's direct appeal counsel filed a petition for review with our Supreme Court. In September, Fowler's brother Darryl Fowler retained a different attorney, John Crowley, to represent Fowler in additional postconviction matters.

¶4 On March 31, 2016, our Supreme Court granted review "only on the issue of imposition of discretionary legal financial obligations" and remanded to the superior court to "reconsider the imposition" of discretionary LFOs consistent with State v. Blazina , 182 Wash.2d 827, 344 P.3d 680 (2015). State v. Fowler , 185 Wash.2d 1016, 368 P.3d 170 (2016). On October 19, the superior court entered an order amending Fowler's judgment and sentence, which amended the imposition of LFOs, and stated that "all other conditions of the Judgment and Sentence remain in effect." Br. of Resp't at App. E.

¶5 On May 22, 2017, the WSBA filed a complaint against Crowley for numerous violations of the Rules for Enforcement of Lawyer Conduct. On July 18, Crowley resigned in lieu of discipline. On October 9, Fowler retained current counsel.

¶6 On October 18, current counsel filed a document he described as a "placeholder" petition in this court. This document did not raise any issues, but instead described Crowley's nonfeasance on this case and stated, "Given the above, the grounds for relief are yet unclear. More time is required to obtain prior counsel's file, diagnose issues, conduct investigation, if necessary, and then prepare and file the petition." Pet. for Review at 4.

¶7 On November 21, we issued the followed ruling:

Petitioner has filed a "placeholder petition" and requests that this court grant him an extension of time in which to file his complete petition. We consider this as a motion to file a supplemental petition and grant the motion. Petitioner should file his supplemental petition, in which he must address why this court should consider waiving the one-year time bar ( RCW 10.73.090 ) or establish that the issues he raises in his supplemental petition are not subject to the time-bar, within 60 days of the date of this ruling.

Ruling by Commissioner re "Placeholder Petition," State v. Fowler , No. 51029-4-II, at 1 (Wash. Ct. App. Nov. 21, 2017).

¶8 On January 23, 2018, this court granted additional time to file a supplemental petition, subject to the conditions of this court's November 21 ruling. Ruling Granting Extension of Time, State v. Fowler , No. 51029-4-II, at 1 (Wash. Ct. App. Jan. 23, 2018). On March 26, 2018, current counsel filed a supplemental petition arguing ineffective assistance of counsel.

ANALYSIS

I. PRP PRINCIPLES

¶9 A PRP is not a substitute for a direct appeal and the availability of collateral relief is limited. In re Pers. Restraint of Grasso , 151 Wash.2d 1, 10, 84 P.3d 859 (2004). To be entitled to relief, the petitioner must show either a constitutional error that resulted in actual and substantial prejudice, or a nonconstitutional error that constituted a fundamental defect that inherently results in a complete miscarriage of justice. In re Pers. Restraint of Woods , 154 Wash.2d 400, 409, 114 P.3d 607 (2005).

¶10 PRPs must be timely filed to warrant our consideration. "No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction." RCW 10.73.090(1).

¶11 RCW 10.73.090(3) provides, in part, that "a judgment becomes final on the last of the following dates: (a) The date it is filed with the clerk of the trial court[ or] (b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction."

¶12 " '[A] judgment becomes final when all litigation on the merits ends.' " In re Pers. Restraint of Sorenson , 200 Wash. App. 692, 696, 403 P.3d 109 (2017) (quoting In re Pers. Restraint of Skylstad , 160 Wash.2d 944, 949, 162 P.3d 413 (2007) ). If the judgment in a criminal case is remanded, and the trial court exercises independent judgment on remand, the judgment becomes final after the trial court's decision on remand. Sorenson , 200 Wash. App. at 699-700, 403 P.3d 109.

¶13 A petitioner may amend an initial petition or file a supplemental brief, and raise new grounds for relief, so long as the supplemental brief is timely filed and the new issue is adequately raised. In re Pers. Restraint of Meredith , 191 Wash.2d 300, 307, 422 P.3d 458 (2018) ; In re Pers. Restraint of Haghighi , 178 Wash.2d 435, 446, 309 P.3d 459 (2013).

II. PETITION IS UNTIMELY

¶14 The State argues that Fowler's petition is untimely. Fowler does not dispute that his supplemental petition was filed more than one year after his judgment became final, but he argues that he is entitled to equitable tolling. We agree with the State, and dismiss Fowler's petition as untimely.

¶15 On October 19, 2016, the trial court reconsidered Fowler's LFOs, and entered an "order amending [judgment and sentence]," which amended the imposition of LFOs. Br. of Resp't at App. E. Because Fowler did not appeal the LFO decision, his judgment became final on October 19, 2016. See Sorenson , 200 Wash. App. at 696, 403 P.3d 109.

¶16 Fowler filed his initial petition on October 18, 2017. But his initial petition raised no substantive claims. Instead, it stated, "[T]he grounds for relief are yet unclear. More time is required to obtain prior counsel's file, diagnose issues, conduct investigation, if necessary, and then prepare and file the petition." Pet. for Review at 4. Fowler's one year period to file a petition ended on October 20, 2017. But Fowler did not file a supplemental petition containing any substantive claims until March 26, 2018. Thus, his supplemental petition is untimely unless he can establish that the issues he raised in his supplemental petition are not subject to the one year time bar. See Meredith , 191 Wash.2d at 307, 422 P.3d 458.

A. Equitable Tolling

¶17 Fowler argues that the time bar should be equitably tolled based on (1) former counsel's incompetence and false assurances, and (2) current counsel's difficulty in obtaining Fowler's complete file. We disagree that the time bar is tolled.

¶18 Equitable tolling "permits a court to allow an action to proceed when justice requires it, even though a statutory time period has elapsed." In Re Pers. Restraint of Bonds , 165 Wash.2d 135, 141, 196 P.3d 672 (2008). Because the law already permits a variety of methods for challenging wrongful convictions, equitable tolling has a very narrow application in the PRP context, and only where justice requires. Haghighi , 178 Wash.2d at 447-48, 309 P.3d 459. "Consistent with the narrowness of the doctrine's applicability, principles of finality, and the multiple avenues available for postconviction relief, we apply the civil standard and require the predicates of bad faith, deception, or false assurances." Haghighi , 178 Wash.2d at 448-49, 309 P.3d 459. Courts narrowly apply the doctrine of equitable tolling and should not use it with " 'garden variety' " claims of neglect. Haghighi , 178 Wash.2d at 447-48, 309 P.3d 459.

¶19 A petitioner who seeks to benefit from the equitable tolling doctrine must demonstrate that she or he diligently pursued her or his rights and that the petition was untimely due to bad faith, deception, or false assurances caused by the opposing party -here, the State. See Bonds , 165 Wash.2d at 141, 196 P.3d 672 ; Millay v. Cam , 135 Wash.2d 193, 206, 955 P.2d 791 (1998) ; In Re Pers. Restraint of Hoisington , 99 Wash. App. 423, 430-31, 993 P.2d 296 (2000). To show diligence, a litigant must demonstrate they sought relief promptly upon learning the basis for doing so. See State v. Littlefair , 112 Wash. App. 749, 762-63, 51 P.3d 116 (2002). Washington courts have applied equitable tolling to the statutory time limit of PRPs in very few circumstances. See Haghighi , 178 Wash.2d at 447-48, 309 P.3d 459 ; see also Littlefair , 112 Wash. App. at 762, 51 P.3d 116 ; Hoisington , 99 Wash. App. at 431-32, 993 P.2d 296.

¶20 Fowler relies on federal cases discussing equitable tolling to statutory time limits of habeas petitions. Federal courts apply equitable tolling to statutory time limits of habeas petitions in "extraordinary circumstances." Holland v. Florida , 560 U.S. 631, 649, 130 S. Ct. 2549, 2564, 177 L. Ed. 2d 130 (2010). A petitioner seeking equitable tolling of the federal habeas one year limitation bears the burden of establishing " '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.' " Holland , 560 U.S. at 649, 130 S.Ct. 2549 (internal quotation marks omitted) (quoting Pace v. DiGuglielmo , 544 U.S. 408, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005) ).

¶21 Federal courts have found the conduct of petitioner's counsel in some circumstances to constitute extraordinary circumstances for purposes of equitable tolling.

Maples v. Thomas , 565 U.S. 266, 132 S. Ct. 912, 915, 181 L. Ed. 2d 807 (2012) ; Holland , 560 U.S. at 653-54, 130 S.Ct. 2549 ; Spitsyn v. Moore , 345 F.3d 796 (9th Cir. 2003). But the federal cases are distinguishable because the federal standards for equitable tolling of habeas petitions are more lenient. As stated above, Washington courts require the party asserting equitable tolling to demonstrate, among other things, that the conditions causing the untimely filing were caused by the opposing party.

¶22 Here, Fowler retained Crowley on September 2, 2015. Fowler's judgment became final on October 19, 2016, when the superior court entered its order amending the judgment and sentence amending the imposition of discretionary LFOs. The one year period to file a personal restraint petition began on that date.

¶23 On May 22, 2017, the WSBA filed a complaint against Fowler's former counsel, Crowley. On July 18, 2017, Crowley resigned. On October 6, Darryl Fowler learned that Crowley had resigned in lieu of discipline. On October 9, Fowler retained current counsel. On October 18, current counsel filed what he referred to as a "placeholder" petition. On October 20, Fowler's period to file a personal restraint petition ended. On March 26, 2018, current counsel filed a supplemental petition.

¶24 In a declaration, Fowler says that between September 2015 and October 6, 2017, he spoke with Crowley "on only a couple of occasions," and Crowley told Fowler "that he was working on [Fowler's] case and had all sorts of plans of what he was going to do." Suppl. Br. of Petitioner at Ex. D. "In about June of 2017, all of [Fowler's] calls started going to voice mail. In about August of 2017, [Crowley's] line was disconnected." Suppl. Br. of Petitioner at Ex. D.

¶25 As Fowler acknowledges, our Supreme Court does not employ the federal standard of "extraordinary circumstances." Rather, Washington courts require bad faith, deception, or false assurances caused by the opposing party or the court. See Bonds , 165 Wash.2d at 141, 196 P.3d 672 ; Millay , 135 Wash.2d at 206, 955 P.2d 791. Although Fowler has alleged the attorney he hired engaged in egregious behavior, he has failed to establish bad faith, deception, or false assurances by the State. Thus, under Bonds , we hold that Fowler has not demonstrated that he is entitled to equitable tolling.

B. Rule of Appellate Procedure (RAP) 18.8

¶26 Fowler contends the time for filing should be extended under RAP 18.8(a) and (b). We disagree.

¶27 RAP 18.8, which applies to PRPs through RAP 16.17, addresses "[w]aiver of rules and extension and reduction of time." RAP 18.8 provides that appellate courts may waive or alter any provision of the Rules of Appellate Procedure. RAP 18.8(a). Appellate courts may also extend the time to file a notice of appeal, a notice for discretionary review, a motion for discretionary review of a decision of the Court of Appeals, a petition for review, or a motion for reconsideration. RAP 18.8(b).

¶28 The one year time limit of RCW 10.73.090 is a statutory limitation period. Courts do not have the authority to waive statutory limitation periods, as opposed to time limits set down in court rules. In Re Pers. Restraint of Benn , 134 Wash.2d 868, 939, 952 P.2d 116 (1998) ; State v. Robinson , 104 Wash. App. 657, 665, 17 P.3d 653 (2001). The statutory time limit is a mandatory rule that acts as a bar to appellate court consideration of collateral attacks, unless the petitioner shows that a statutory exception applies.

Robinson , 104 Wash. App. at 662, 17 P.3d 653. Because we do not have authority to waive statutory limitation periods under RAP 18.8, Fowler's argument fails.

¶29 Fowler has failed to establish that the issues he raises in his supplemental petition are not subject to the one year time bar under RCW 10.73.090, .100. Consequently, we dismiss his petition as untimely.

We concur:

Lee, A.C.J.

Cruser, J.

      Fowler argues that trial counsel was ineffective for failing to (1) interview crucial witnesses, (2) prepare Fowler for his testimony, and (3) offer evidence that the victims had been abused by another person. The State's response to Fowler's supplemental petition includes trial counsel's declaration that contradicts Fowler's ineffective assistance of counsel claims.

      Because a "placeholder petition" is not authorized under court rules or statutes, this court's November 21, 2017 ruling rejected the characterization of "placeholder petition," and instead considered Fowler's initial petition as a "motion to file a supplemental petition." A petitioner may file an amended petition or supplemental brief and raise new grounds for relief as long as the amended or supplemental filing is timely filed and the issues are adequately raised. Meredith , 191 Wash.2d at 307, 422 P.3d 458 ; Haghighi , 178 Wash.2d at 446, 309 P.3d 459. A petitioner cannot, however, avoid the time bar by filing a "placeholder petition" that fails to adequately raise claims, and then after the deadline, file a supplemental brief that meets the requirements for an acceptable petition. See Haghighi , 178 Wash.2d at 446, 309 P.3d 459 ; see also Meredith , 191 Wash.2d at 307, 422 P.3d 458.


source: Caselaw Access Project

author: KAUTZ, Justice.

license: Public Domain

text:
    In the Matter of the Workers' Compensation Claim of: Pete HART, BY AND THROUGH his Personal Representative, Mona HART, Appellant (Petitioner), v. STATE of Wyoming, EX REL., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
    S-17-0290
    Supreme Court of Wyoming.
    September 7, 2018
    Representing Appellant: Ethelyn (Lynn) Boak, Cheyenne, Wyoming.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General.
    Before DAVIS, C.J., and BURKE , FOX, KAUTZ, and BOOMGAARDEN, JJ.

      Chief Justice at time of brief-only conference.

   KAUTZ, Justice.

[¶1] In 2014, Pete Hart sought permanent total disability benefits for a back injury he sustained at work in 2005. The Workers' Compensation Division (the Division) denied benefits, and the Medical Commission Hearing Panel (Medical Commission) upheld the Division's denial of benefits after a contested case hearing. We affirm.

ISSUES

[¶2] Mr. Hart raises two issues in this appeal:

I. The Medical Commission's Findings of Fact, Conclusions of Law, and Order was vacated and remanded for further proceedings by the District Court. The Supplemental Findings of Fact, Conclusions of Law, and Order came to the same conclusion and this time was affirmed by the District Court, although the [Medical] Commission did not take any additional evidence. Was it proper to reverse and remand, rather than simply reversing and awarding benefits, and did the supplemental order cure the inadequacies identified by the District Court in the original Order?
II. Permanent total disability is "the loss of use of the body as a whole or any permanent injury ... which ... incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited ...." Pete Hart injured his back in a work accident. He continued to work but his back pain increased throughout surgery, steroid injections and pain medications. He was diagnosed with ALS [amyotrophic lateral sclerosis ] two months before he was certified for [permanent total disability.] Was the work injury the cause of [his permanent total disability]?

FACTS

[¶3] On August 24, 2005, Mr. Hart injured his back while working at Solvay Chemicals, Inc. (Solvay). The Division opened a case and thereafter approved temporary disability benefits. In April 2006, Mr. Hart was evaluated for an impairment rating by Dr. Michael Kaplan. Dr. Kaplan recognized that Mr. Hart had returned to work by this time and concluded he had a total whole person impairment rating of 12%. On May 17, 2006, the Division approved Mr. Hart's request for permanent partial impairment benefits.

[¶4] Throughout the years after his injury, Mr. Hart received treatment for his continuing back pain from Dr. Raymond Bedell. His treatment included steroid injections and the use of pain medications. Despite his back pain, Mr. Hart continued to work at Solvay as a boiler operator. Mr. Hart explained that Solvay's policy did not allow him to take his pain medication while he was working, so he would wait to take it until after his shift had ended.

[¶5] In July 2013, Mr. Hart experienced a swollen tongue and slurred speech while at work and was taken from Solvay to the emergency room at Memorial Hospital of Sweetwater County via ambulance. While the records from the emergency room visit are not in the record, it appears the emergency room staff was unable to determine the cause of Mr. Hart's condition. However, for reasons undisclosed by the record, Mr. Hart attributed his condition to a reaction to one of his pain medications (Lortab ). Mr. Hart never returned to work. Mrs. Hart testified her husband was told by his supervisor at Solvay that he was not allowed to return to work until he was "off pain medication."

[¶6] Mr. Hart continued his back treatment with Dr. Bedell, and in October 2013, Dr. Steven Ringel at the University of Colorado Hospital diagnosed Mr. Hart with amyotrophic lateral sclerosis (ALS). On January 21, 2014, Mr. Hart submitted an application for permanent total disability benefits claiming the back injury he sustained in 2005 prevented him from working in his current position at Solvay. He claimed he could not work because his ALS increased the pain associated with his back injury and he must continuously take pain medication. He explained Solvay's policy prevented him from taking pain medication before or during his shift. Mr. Hart attached a certification from Dr. Bedell that identified Mr. Hart's physical complaints that prevented him from returning to work as: "ALS, failed back, DDD, sciatica."

[¶7] After receiving his application, the Division referred Mr. Hart to Dr. Kaplan for an independent medical examination. Dr. Kaplan noted that at the time of the examination (May 2014), Mr. Hart suffered a right foot drop and drooling, had lost his ability to speak, and was using a feeding tube, all of which were attributable to ALS. Dr. Kaplan concluded: "Mr. Hart's current disability status, from the standpoint of an inability to return to his previous level of participation in the work setting, stems more from the recent development of ALS than from injury residual." Dr. Kaplan further stated: "In my opinion, if it were not for the ALS, [Mr. Hart] may have been able to manage his normal work duties, with chronic pain medications and injections continuing, as that was a successful regimen / pattern over the years." On June 10, 2014, the Division relied on Dr. Kaplan's report and denied Mr. Hart's request for permanent total disability benefits, determining Mr. Hart could not return to work because of ALS and not his back injury. Mr. Hart objected to the Division's determination. The Division referred the matter to the Medical Commission under Wyo. Stat. Ann. § 27-14-601(k)(v) (LexisNexis 2017).

[¶8] Mr. Hart and Dr. Bedell both died before the Medical Commission could conduct a hearing on this matter. Unfortunately, they were not deposed before they died. At the hearing, Mrs. Hart testified about her husband's back injury in 2005, his subsequent treatment, and the fact that he had thereafter returned to work. However, Mrs. Hart did not know how often or when Mr. Hart would use his pain medications and she did not know if he used them at work. Mrs. Hart also testified Dr. Bedell had suggested that Mr. Hart apply for permanent total disability benefits due to his back injury approximately two to three years before he actually submitted his application. Based upon Mrs. Hart's testimony and the medical records submitted to the Medical Commission, Mr. Hart argued he was entitled to total permanent disability benefits under the odd lot doctrine.

[¶9] Dr. Kaplan did not testify at the hearing, but Mr. Hart submitted the transcript of Dr. Kaplan's deposition taken a year earlier. Dr. Kaplan testified consistently with the report from his 2014 independent medical examination of Mr. Hart. He agreed that Mr. Hart was unable to return to his position at Solvay but stated the reason for that permanent incapacitation was due to ALS and not the back injury. He also testified there is no correlation between a back injury and a progressive nerve degenerative disease like ALS.

[¶10] After considering Mrs. Hart's testimony, Dr. Kaplan's deposition and report, and the medical records, the Medical Commission concluded Mr. Hart had not established his inability to return to work was related to his back injury. The Medical Commission stated it gave great weight to Dr. Kaplan's independent medical examination, but also found Mrs. Hart's testimony credible. It also noted that certain aspects of Dr. Bedell's certification could not be clarified due to his death. Mr. Hart appealed the decision to the district court. The court concluded substantial evidence did not exist to support the Medical Commission's decision to give great weight to Dr. Kaplan's opinion because it was speculative. The court also determined substantial evidence did not support the Medical Commission's treatment of Mrs. Hart's testimony. While the Medical Commission found her testimony credible, it did not appear to consider her testimony when it analyzed the issues. The district court opted to remand the case in lieu of simply reversing the decision because "a court of review risks missing material evidence in the record if it decides the sufficiency of the evidence in the absence of full and complete findings by the agency which are argued in the parties' briefs on appeal."

[¶11] On remand, the Medical Commission chose to simply hear further argument from the parties instead of receiving any additional evidence. In its subsequent order, the Medical Commission reached the same conclusion-Mr. Hart failed to prove by a preponderance of the evidence that his work-related back injury from 2005 was the reason he was unable to continue working after July 2013. However, the Medical Commission provided far more specific details regarding its conclusions in its order after the remand than it did in its initial order. The Medical Commission explained that, although Dr. Bedell's certification, which was given some months after Mr. Hart's ALS diagnosis, included "failed back" as one of his listed disabilities, the medical records did not establish that Dr. Bedell's assessment of Mr. Hart's back injury ever changed. The Medical Commission determined Dr. Kaplan's evaluation was more complete, comprehensive and objective, and afforded it greater weight than Dr. Bedell's certification. Finally, the Medical Commission explained that, while it found Mrs. Hart's testimony credible, it was general in nature and lacked specificity. For example, she testified that Dr. Bedell had spoken to Mr. Hart about applying for permanent total disability benefits, but she did not know when the conversation occurred. Further, she did not know if Mr. Hart had taken his pain medication before his emergency room visit in July 2013, and she did not know his normal medication routine.

[¶12] Mr. Hart again appealed the Medical Commission's decision to the district court. The court determined that the Medical Commission appropriately considered Mrs. Hart's testimony in the second order and properly concluded that some of her relevant testimony was general in nature and lacked specificity. The district court continued to express concern with the Medical Commission's reliance on Dr. Kaplan's report and deposition, which the court maintained was speculative. However, it concluded Dr. Kaplan's opinions were irrelevant because the Medical Commission had also determined that Mr. Hart had failed to carry his burden of demonstrating he was disabled by his work-related injury. The district court concluded the medical records did not corroborate Mr. Hart's claim that his back condition worsened over time and there were no medical records that would support Mr. Hart's belief that his pain medication caused the emergency room visit. Because the Medical Commission's decision was supported by the evidence, the district court affirmed the decision. Mr. Hart filed a timely notice of appeal.

DISCUSSION

Did the district court appropriately remand the claim to the Medical Commission?

[¶13] Mr. Hart argues the district court erred when it initially remanded his claim to the Medical Commission for further findings instead of reversing the decision and awarding benefits. Mr. Hart asserts that the district court's review of the Medical Commission's first order is similar to what occurred in Rodgers v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2006 WY 65, 135 P.3d 568 (Wyo. 2006). However, a review of the applicable rules of appellate procedure and Rodgers leads to the conclusion that the district court appropriately remanded Mr. Hart's claim to the Medical Commission for further proceedings.

[¶14] Wyoming Rule of Appellate Procedure 12.09 governs the extent of a district court's review of an administrative action and subsection (f) states: "The district court's judgment shall be in the form of an order affirming, reversing, vacating, remanding or modifying the order for errors appearing on the record." W.R.A.P. 12.09(f). We have stated that generally, if there is a problem with the agency's action, the proper course is to remand the matter to the agency for further consideration:

If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.

Decker v. State ex rel. Wyo. Med. Comm'n , 2005 WY 160, ¶ 36, 124 P.3d 686, 697 (Wyo. 2005) (quoting Bush v. State ex rel. Wyo. Workers' Comp. Div ., 2005 WY 120, ¶ 12, 120 P.3d 176, 180, 181 (Wyo. 2005) ).

[¶15] We recognized this general rule in Rodgers , but determined it was appropriate under the narrow circumstances found in that case to reverse the matter and direct the Medical Commission to enter an order awarding benefits. Rodgers , ¶ 2, 135 P.3d at 571. In Rodgers , the Medical Commission determined a medical expert's opinion was persuasive but misstated what the opinion was. Based on that erroneous understanding of the opinion, the Medical Commission denied benefits. Id ., ¶ 51, 135 P.3d at 585. On review, we agreed the expert's opinion was persuasive, but determined the claimant was entitled to benefits when the expert's actual opinion was considered. Id ., ¶ 52, 135 P.3d at 585. Because this Court simply gave effect to the expert's opinion and did not question the Medical Commission's credibility determinations or the weight it attributed to any piece of evidence, we determined the matter need not be remanded for further agency proceedings. Id .

[¶16] The circumstances from Rodgers are not present here. The district court found the Medical Commission failed to consider Mrs. Hart's testimony in its determination, even though it considered her testimony credible. Further, the Medical Commission failed to consider the strength of, and reasons for, Dr. Kaplan's opinions before assigning great weight to his evaluation. Therefore, the Medical Commission needed to fully consider all of the evidence presented before the reviewing court could fairly review the issues. The district court recognized this when it stated: "The Court remands in lieu of reversal because a court of review risks missing material evidence in the record if it decides the sufficiency of the evidence in the absence of full and complete findings by the agency which are argued in the parties' briefs on appeal." To do otherwise would result in a de novo review by the district court regarding witnesses' credibility and the weight of the evidence-a review that has been repeatedly disfavored by this Court. See Bush , ¶ 12, 120 P.3d at 180-81 ; Decker , ¶ 36, 124 P.3d at 697 ; Rodgers , ¶ 42, 135 P.3d at 582. The district court appropriately remanded Mr. Hart's claim for further findings and conclusions by the Medical Commission.

Was the Medical Commission's decision supported by substantial evidence?

[¶17] Mr. Hart argues the Medical Commission's determination that his disability was caused by ALS and not his work-related back injury is not supported by substantial evidence. When reviewing an administrative agency's decision, we review the case as if it had come directly to this Court from the administrative agency and give no deference to the district court's decision. Kebschull v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div. , 2017 WY 94, ¶ 26, 399 P.3d 1249, 1255 (Wyo. 2017). Our review of an administrative agency's decision is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2017):

(c) To the extent necessary to make a decision when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
....
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶18] Using this standard, we consider whether substantial evidence exists in the record to support the Medical Commission's conclusion that Mr. Hart failed to carry his burden of demonstrating his disability was caused by his work-related back injury. Dale v. S & S Builders, LLC , 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo. 2008). We have explained the substantial evidence test as follows:

In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence.

Id . (quoting Newman v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2002 WY 91, ¶ 12, 49 P.3d 163, 168 (Wyo. 2002) ). We have re-stated this test in the specific circumstance we have here-where the agency determines the claimant has failed to carry his burden of proof:

If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole.

Watkins v. State ex rel. Wyo. Med. Comm'n , 2011 WY 49, ¶ 16, 250 P.3d 1082, 1086 (Wyo. 2011) (quoting Dale , ¶ 22, 188 P.3d at 561 ). Because the administrative body "is the trier of fact and has the duty to weigh the evidence and determine the credibility of witnesses," we will defer to the Medical Commission's findings of fact unless they are clearly contrary to the overwhelming weight of the evidence in the record. Dale , ¶ 11, 188 P.3d at 558-59. Further, "our review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did, based on all the evidence before it." Kebschull , ¶ 28, 399 P.3d at 1256.

[¶19] Before getting into the specifics of Mr. Hart's claim, it is important to recognize that "[a] claimant for workers' compensation benefits must prove all of the essential elements of his claim by a preponderance of the evidence." In re Vandre , 2015 WY 52, ¶ 22, 346 P.3d 946, 953 (Wyo. 2015) (quoting Hayes v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2013 WY 96, ¶ 14, 307 P.3d 843, 847 (Wyo. 2013) ). Further, it is the appellant's burden on appeal to demonstrate the Medical Commission's findings of fact were not supported by substantial evidence. Watkins , ¶ 16, 250 P.3d at 1086. Using this framework and the appropriate standard of review, we conclude the Medical Commission's decision that Mr. Hart failed to carry his burden of proving his disability was caused by his work-related injury is supported by substantial evidence in the record.

[¶20] Mr. Hart argued to the Medical Commission that he was entitled to permanent total disability benefits due to his 2005 back injury. The worker's compensation statutes define "permanent total disability" as: "the loss of use of the body as a whole or any permanent injury certified under W.S. 27-14-406, which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training[.]" Wyo. Stat. Ann. § 27-14-102(a)(xvi) (LexisNexis 2017). "Injury" is defined as:

[A]ny harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business.

Wyo. Stat. Ann. § 27-14-102(a)(xi) (LexisNexis 2017).

[¶21] Additionally, a claimant may be entitled to permanent total disability benefits under the odd lot doctrine. As stated supra , a claimant who is not actually permanently totally disabled may receive benefits under the odd lot doctrine if the claimant's disability and other factors make the claimant de facto unemployable. In re Pickens , 2006 WY 54, ¶ 14, 134 P.3d 1231, 1236 (Wyo. 2006). In order to prevail using the odd lot doctrine, a claimant must make a prima facie showing that "(1) 'he is no longer capable of working at the job in which he was employed at the time of his injury,' and (2) 'the degree of obvious physical impairment, coupled with other facts, such as mental capacity, education, training, or age' qualify him for odd lot treatment." Id . (quoting City of Casper v. Bowdish , 713 P.2d 763, 765 (Wyo. 1986) ). With respect to the first factor, the claimant must demonstrate a causal connection between a compensable workplace injury and the claimant's inability to work at the job he held at the time of the injury. Id ., ¶ 30, 134 P.3d at 1240-41. Once the claimant has made a prima facie showing, the burden shifts to the Division "to show that light work of a special nature which the claimant could perform is available." Id ., ¶ 14, 134 P.3d at 1236.

[¶22] Whether Mr. Hart was seeking permanent total disability benefits under Wyo. Stat. Ann. § 27-14-406 or under the odd lot doctrine, he was required to show he was disabled due to a work-related injury. There is no dispute Mr. Hart suffered a work-related back injury in 2005, and the Division properly awarded him benefits for that injury at the time. There is also no dispute Mr. Hart continued to seek medical treatment for his back pain up to the point he was taken via ambulance from Solvay to the emergency room for slurred speech and a swollen tongue in July 2013. Unfortunately, the resolution of whether the work-related back injury was responsible for Mr. Hart's inability to return to work after July 2013 is not as clear. The Medical Commission's review was complicated by several factors including Mr. Hart's and Dr. Bedell's deaths which left unanswered questions, and the fact that Mr. Hart did not apply for permanent total disability benefits until almost six months after he could not return to work and four months after his ALS diagnosis.

[¶23] Taking into consideration all of the evidence, the Medical Commission concluded Mr. Hart failed to prove by a preponderance of the evidence that his disability and inability to return to work was the result of his work-related back injury and not his ALS symptoms. July 2013 is a pivotal time in this sequence as Mr. Hart never returned to work after his emergency room visit. The emergency room visit was not the result of back pain; instead, Mr. Hart was suffering from a swollen tongue and slurred speech. For some time, the cause of those symptoms was unknown. Mrs. Hart testified that the physicians were unable to diagnose Mr. Hart's symptoms during his emergency room visit, but that Mr. Hart "thought it might have been medication or something. He didn't know." Approximately two weeks after the emergency room visit, Mr. Hart told Dr. Bedell that he believed his swollen tongue and slurred speech were "attributed to a generic [L]ortab pill." While that may have been Mr. Hart's belief, there is nothing in the record that explains why he had that belief. The emergency room records are not in the administrative record, making it unknown if a medical provider at the emergency room may have suggested that possibility. The medical records that are in the administrative record indicate Dr. Bedell did not believe Lortab was the root of Mr. Hart's symptoms because he continued to prescribe the medication thereafter. Of course, by the time Mr. Hart applied for benefits, his health care providers knew the symptoms were caused by ALS and not a reaction to Lortab.

[¶24] In his application for benefits, Mr. Hart asserted he was unable to work because "of [his] back injury and not being able to take the proper pain meds [he] needs to control the pain." He explained that, due to a Solvay policy, he could not take his pain medication right before or during his shift, which resulted in severe pain. Mrs. Hart echoed this statement in her testimony:

Q. Did he ever go back to work after that date?
A. No.
Q. And do you know why he didn't go back to work after that date?
A. No.
Q. Okay.
A. Pain medication.
Q. What do you mean by that?
A. They said that he had to be off pain medication to return to work.
Q. And what pain medication was he taking at that time?
A. He was taking pain medication for his back.
Q. So he was not allowed to return to work because he was taking pain medication for his back?
A. That's what we were told, yes.
Q. Okay. Now, was it your understanding at least that Solvay had a policy of not having their employees using pain medications while they were at work?
A. Yes.

[¶25] While Mr. and Mrs. Hart stated Mr. Hart could not return to work because of his use of pain medication, the overall state of the record calls that fact into question. The Medical Commission was not provided Solvay's policy regarding the use of pain medications, and there is nothing in the record that documents Mr. Hart was told by anyone at Solvay that he could not return to work until he was no longer using pain medications. This is significant because Mr. Hart continued to work while treating his back with pain medication for many years before July 2013. Mr. Hart told Dr. Kaplan that he would work his shift without pain medication and then take it at the end of the work day. Mrs. Hart was unable to shed any light on when and how often Mr. Hart was taking his pain medication and if that routine had changed leading up to July 2013:

Q. Do you know if Pete was taking his pain medication while he was at work prior to this incident in the summer of 2013?
A. No.
Q. What was your understanding of how Pete utilized his pain medications for his back?
A. He used them as they were prescribed on the bottle.
Q. Did he have a routine that you were aware of?
A. No.

[¶26] Shortly after his emergency room visit, Mr. Hart provided Solvay with a sick leave verification form from Dr. Bedell that made no mention of back pain. Instead, Dr. Bedell stated that Mr. Hart's disability, which began on July 27, 2013, was due to "oral cellulitis /swelling" and that he expected the disability to end in late September 2013. On October 4, 2013, Dr. Ringel provided a physician statement to Solvay diagnosing Mr. Hart with ALS and indicating that he expected Mr. Hart would never return to work. In early January 2014, Mr. Hart requested a release to return to work at Solvay. The medical provider who examined Mr. Hart would not release him for work "due [to] inability to communicate thus raising safety concerns."

[¶27] Without more specific evidence showing Mr. Hart did not return to Solvay after the July 2013 emergency visit because of his back pain, we cannot say the Medical Commission erroneously concluded Mr. Hart failed to carry his burden of demonstrating that his back injury prevented him from working. The symptoms that necessitated the emergency room visit were not the product of his back injury, and the medical records suggest his absence from work thereafter was due to ALS. Although Dr. Bedell certified Mr. Hart's disability included his back injury, that symptom was included in a list: "ALS, failed back, DDD, sciatica." Further explanation of how these varying symptoms played into Mr. Hart's disability was necessary when the certification is taken into consideration with the totality of the medical records. However, further explanation could not be given due to Dr. Bedell's death.

[¶28] The majority of Mr. Hart's argument on appeal focuses on the fact that the Medical Commission relied heavily on what he considers speculative and inappropriate conclusions in Dr. Kaplan's independent medical examination and deposition testimony. We need not consider the appropriateness of Dr. Kaplan's findings. Because Mr. Hart failed to demonstrate by a preponderance of the evidence that he was disabled by his back injury, Dr. Kaplan's findings that Mr. Hart could have returned to work had he not developed ALS are irrelevant.

[¶29] The Medical Commission's conclusion that Mr. Hart failed to carry his burden of demonstrating his inability to return to work was caused by his work-related injury is supported by substantial evidence in the record. Therefore, we affirm the Medical Commission's decision that Mr. Hart is not eligible for permanent total disability benefits.

CONCLUSION

[¶30] The district court appropriately remanded the Medical Commission's first decision for further findings of fact and conclusions of law. The Medical Commission's conclusion that Mr. Hart failed to demonstrate his disability was caused by his work-related back injury is supported by substantial evidence in the record.

[¶31] Affirmed.

      Mr. Hart died on January 6, 2015, before his contested case before the Medical Commission had concluded. Mr. Hart's widow, Mona Hart, continued the contested case hearing and subsequent appeal as Mr. Hart's personal representative. For clarity's sake, we will refer to the appellant and claimant as Mr. Hart.

      The record does not disclose what "DDD" means. However, it is likely Dr. Bedell was referring to degenerative disc disease, which is "a general term for the condition in which a damaged vertebral disc causes chronic pain - either low back pain (and/or leg pain, sciatica) in the lumbar spine or neck pain (and/or arm pain) in the cervical spine." https://www.spine-heath.com/glossary/degenerative-disc-disease.

      "Under the odd lot doctrine, a claimant who is not actually permanently totally disabled is able to receive permanent total disability benefits because the claimant's disability and other factors make the claimant de facto unemployable." In re Pickens , 2006 WY 54, ¶ 14, 134 P.3d 1231, 1236 (Wyo. 2006). Further information regarding the requirements of the odd-lot doctrine will be discussed infra .

      Mr. Hart also argues that the supplemental order issued by the Medical Commission after remand did not cure the deficiencies the district court identified in the first order. Whether the deficiencies were cured or not, however, is irrelevant as a stand-alone issue. So long as the Medical Commission's findings of fact and conclusions of law in the supplemental order are supported by substantial evidence in the record, the supplemental order will be affirmed despite the circumstances surrounding the first order. Therefore, we decline to address this as an independent issue because the propriety of the supplemental order will be otherwise determined.

      The Division asserts Mrs. Hart also testified on cross-examination that Solvay would not allow Mr. Hart to return to work immediately after his emergency room visit due to his slurred speech. Mrs. Hart did, in fact, answer in the affirmative when asked, "In July 2013, was the reason that Pete's supervisor told him not to return to work, was the slurred speech, correct?" However, that question and answer is not an accurate reflection of Mrs. Hart's testimony as a whole. On direct examination, Mrs. Hart clearly conveyed that Mr. Hart was told he could not return to work until he was off pain medication. On redirect, Mr. Hart's attorney attempted to clarify the inconsistency between Mrs. Hart's direct and cross-examination answers:
      Q. Now, I wanted to clarify something because I believe you said two different things - -
      A. Okay.
      Q. - - in your direct and your cross-examination.
      A. Okay.
      Q. [Division's attorney] asked you a question that, to the effect that they wouldn't let your husband go back to work because of his slurred speech, and you said yes.
      A. Oh, no, that's not true.
      Q. And then on direct examination you said they told him he couldn't return to work because he needed to be off his pain medication?
      A. Pain medicines, yes.
      Q. Is it possible that both of those occurred but one occurred before the other, or do you recall?
      A. I do recall that Pete told me that he was told he could not return to work until he was off pain medication.
      It appears the Medical Commission chose not to rely on what appears to be a misstatement Mrs. Hart made in her cross-examination. We also decline to use that misstatement against Mr. Hart in his appeal.


author: GRAY, Justice.

text:
    MSC, II, Appellant (Petitioner), v. MCG, Appellee (Respondent).
    S-18-0191
    Supreme Court of Wyoming.
    May 31, 2019
    Representing Appellant: MSC, II, pro se.
    Representing Appellee: No appearance.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   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. 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). 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). 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 relief from an income withholding order?

[¶8] Essential to appellate review, under any applicable standard of review, is the requirement that an appellant must present cogent argument and authority to support his claim. "For more than thirty-five years [now 59 years], this Court has summarily affirmed cases or issues in cases that are not presented with cogent argument or pertinent authority." Hamburg v. Heilbrun , 891 P.2d 85, 87 (Wyo. 1995) ; see also Earlywine v. Peterson , 885 P.2d 861, 864 (Wyo. 1994) ; Wyoming Game and Fish Comm'n v. Thornock , 851 P.2d 1300, 1304 (Wyo. 1993) ; State ex rel. Reece v. Wyoming State Bd. of Outfitters & Prof'l Guides , 931 P.2d 958, 959 (Wyo. 1997). Father's brief fails to satisfy this requirement.

[¶9] Rule 60(b)(6) provides:

(b) Grounds for Relief from a Final Judgment , Order, or Proceeding . - On motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ...
(6) any other reason that justifies relief.

W.R.C.P. 60(b)(6) (emphasis added). "[T]he express purpose of this rule is to provide the courts with the means of relieving a party from the oppression of a final judgment ... on a proper showing where such judgments are unfairly or mistakenly entered." Kennedy v. Kennedy , 483 P.2d 516, 518 (Wyo. 1971). "An order denying relief under Rule 60(b) is appealable ...." McBride v. McBride , 598 P.2d 814, 816 (Wyo. 1979).

[¶10] Father's Motion for Relief from Child Support Order, in spite of its title, requested only relief from the Income Withholding Order. Contrary to that request, the body of Father's motion contested the validity of the child support order, not the Income Withholding Order. Specifically, he claimed the minimum obligation under Wyo. Stat. Ann. § 20-2-304(b) violates federal law. Thus, although Father requests that he be relieved "from the Income Withholding Order ," he apparently does not distinguish between an income withholding order and an order establishing his child support. His motion requests that his child support obligation be vacated and that the district court return any money he has paid in child support. He presents no argument that the Income Withholding Order, itself, was improper.

[¶11] Father could have actually sought relief from the child support order under W.R.C.P. 60(b), if that was his intent. A challenge to an income withholding order can be brought under the procedures set forth in the Income Withholding Act. In addition, there are statutory procedures for modification of a child support order. See, e.g. , Wyo. Stat. Ann. §§ 20-6-216 and 20-6-209 (LexisNexis 2017). The statutory grounds for challenging an income withholding order include: modification, termination or suspension of the support order; full payment of arrearages; modification to conform to statutory maximum withholding limitations; inability to deliver withheld income to obligee because of an invalid delivery address; an agreement with the obligee; an improper service of notices; disputes over the amount of current support; and/or disputes over the identity of the obligor. Id. These statutes make it clear that a challenge to a child support order is not the same as a challenge to an income withholding order.

[¶12] Father has not provided any cogent argument supporting his challenge to the Income Withholding Order. He has not provided any authority indicating that a challenge to the Income Withholding Order could result in the relief he seeks. We summarily affirm denial of Father's Rule 60(b) motion seeking relief from the Income Withholding Order.

[¶13] Even if we were to assume, as suggested in the dissent, that Father actually intended to challenge the original order establishing his child support, there are significant reasons to summarily affirm denial of his 60(b) motion. First, Father fails to present a record which would enable review of his claim. Montoya v. Navarette-Montoya , 2005 WY 161, ¶ 5, 125 P.3d 265, 268 (Wyo. 2005) ("It is [the Appellant's] burden to supply this Court with a sufficient record so that a proper evaluation of the trial court's decision can be conducted."). The record in this case does not establish that the presumptive minimum child support was applied to Father as the result of an irrebuttable presumption. There is no financial affidavit, either then or now, showing Father's income when the child support was established. The district court did not calculate a presumptive amount of child support. The district court did not make findings about income of either of the parties.

[¶14] The court did make these findings: (1) deviation from the support guidelines was necessary; (2) Father was not scheduled to be released from prison until late November 2012; (3) Father was not realistically able to earn imputed income; and (4) it was in the children's best interest that Father pay $50.00. These findings do not necessarily indicate that Father did not have income from other sources, and they do not necessarily indicate his monthly income was less than $200.00. Under Wyo. Stat. Ann. § 20-2-304(b), Father's presumptive child support would have been $50.00 if his monthly income was $200.00. Wyo. Stat. Ann. § 20-6-204(a) (LexisNexis 2011). The finding he was "not realistically able to earn imputed income" might mean he was not able to earn anything at all, or it might mean he was not able to earn minimum wage for 40 hours-the typical basis of imputed income. Whichever meaning the trial court intended, there was no finding about other income. From the record, we cannot know if the court found $50.00 appropriate because of the presence of other income, an irrebuttable presumption, a rebuttable presumption, Father's stipulation, or based on other evidence. Leniency for a pro se appellant cannot overcome a record that requires conjecture and speculation to reach a result.

[¶15] Second, Father fails to present any cogent argument or statutory analysis to support his claim that Wyoming's statutory approach to setting child support includes an irrebuttable presumption. It is arguable that Wyo. Stat. Ann. § 20-2-304(b) creates a rebuttable presumption of $50.00 per month minimum child support when read in conjunction with Wyo. Stat. Ann. § 20-2-307(a) which states: "The presumptive child support established by W.S. 20-2-304 shall be rebuttably presumed to be the correct amount of child support[.]" Without cogent statutory analysis, we should not create the arguments we think Father might make. Williams v. Tharp , 2017 WY 8, ¶ 9, 388 P.3d 513, 516 (Wyo. 2017) ("Courts make some allowances for pro se litigants, but neither this Court nor the district court is obligated to frame the issues for the parties or consider issues not supported by cogent argument and citation to legal authority."). Summary affirmance is appropriate.

II. Was the $85.00 fee under Wyo. Stat. Ann. § 5-3-206(a)(vii) properly assessed when no transcripts were requested?

[¶16] Father also contends that the district court clerk improperly demanded an $85.00 fee for this appeal. Although he objected to the filing fee in the district court, Father failed to present any order or decision denying (or sustaining) his objection. Assuming without deciding the district court clerk's requirement that Father pay the filing fee constitutes an appealable order, we will consider his claim.

[¶17] Wyo. Stat. Ann. § 5-3-206(a)(vii) (LexisNexis 2017) provides:

(a) For all civil matters filed or commenced, the clerk of each district court shall charge the following fees:
...
(vii) For all transcripts in cases appealed to the supreme court, eighty-five dollars ($85.00), including certificates, seals and transmission. Twenty-five dollars ($25.00) of the fee under this paragraph shall be for court automation, ten dollars ($10.00) shall be for indigent civil legal services and both shall be remitted as provided in W.S. 5-3-205 [.]

Father argues the fee found in Wyo. Stat. Ann. § 5-3-206(a)(vii) is inapplicable because he requested "no relevant portions of the transcript of evidence" for his appeal. Father asks us to direct the district court clerk to reimburse him.

[¶18] In essence, Father's argument is that the term "transcripts" in Wyo. Stat. Ann. § 5-3-206(a)(vii) should be interpreted to mean transcripts of testimony.

"When we interpret statutes, our goal is to give effect to the intent of the legislature." Fugle v. Sublette Cty. Sch. Dist. No. 9 , 2015 WY 98, ¶ 8, 353 P.3d 732, 734 (Wyo. 2015) (citations omitted). "[W]e 'attempt to determine the legislature's intent based primarily on the plain and ordinary meaning of the words used in the statute.' " Id. at ¶ 8, 353 P.3d at 734 (quoting Krenning v. Heart Mountain Irrigation Dist. , 2009 WY 11, ¶ 9, 200 P.3d 774, 778 (Wyo. 2009) ). We "construe each statutory provision in pari materia , giving effect to every word, clause, and sentence according to their arrangement and connection." PacifiCorp, Inc. v. Dep't of Revenue , 2017 WY 106, ¶ 10, 401 P.3d 905, 908 (Wyo. 2017) (quoting Nicodemus v. Lampert , 2014 WY 135, ¶ 13, 336 P.3d 671, 674 (Wyo. 2014) ). And, when "the words used convey a specific and obvious meaning, we need not go farther and engage in statutory construction."

Int'l Ass'n of Fire Fighters Local Union No. 5058 v. Gillette/Wright/Campbell Cty. Fire Prot. Joint Powers Bd. , 2018 WY 75, ¶ 20, 421 P.3d 1059, 1064 (Wyo. 2018).

[¶19] If a statute is ambiguous, or susceptible to multiple meanings, we apply principles of statutory construction.

One of those principles is that we read statutes "in pari materia , giving effect to every word, clause, and sentence according to their arrangement and connection."
PacifiCorp , 2017 WY 106, ¶ 10, 401 P.3d at 908 (citations omitted). We "consider all statutes relating to the same subject or having the same general purpose and strive to interpret them harmoniously." Id. (quoting Nicodemus , 2014 WY 135, ¶ 13, 336 P.3d at 674 ). And, we "will not interpret a statute in a way that renders any portion meaningless or in a manner producing absurd results."

Id. ¶ 34, 421 P.3d at 1067.

[¶20] The term "transcripts," when read in isolation, is susceptible to multiple meanings. A common definition (the one urged by Father) is a written, printed, or typed copy of words that have been spoken. Transcript , Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/transcript (last visited May 28, 2019). However, "transcript" of a record "[r]efers to the printed record as made up in each case of the proceedings and pleadings necessary for the appellate court to review the history of the case." Transcript , Black's Law Dictionary (6th ed. 1990).

[¶21] When we read the entire sentence containing "transcript" in this statute and consider all of the language in the statute and rules about appeals, it is obvious that the intended meaning is a printed record of the proceedings in a case being appealed. The whole sentence reads, "For all transcripts in cases appealed to the supreme court, eighty-five dollars ($85.00), including certificates, seals and transmission." Wyo. Stat. Ann. § 5-3-206(a)(vii). W.R.A.P. 3.05(a) and (f) require the district court to: (1) notify this Court that the "record has been completed and certified"; and (2) at the appropriate time, transmit to this Court the designated portions of the record. It is obvious that in each appealed case the clerk of district court must deliver a "transcript" of the record of the designated proceedings to this Court.

[¶22] Further, Father ignores W.R.A.P. 2.09(a) : "The fee for filing an appeal or other action in the supreme court shall be set by order of the court and published in Rules of the Supreme Court of Wyoming." This Court entered an order on June 21, 2017, which requires the district court clerk to collect fees, stating: "For all transcripts and records in cases appealed or certified to the Supreme Court, including certificates, seals and transmission, $85.00 ... shall be remitted as provided in Wyo. Stat. Ann. § 5-3-205." These rules indicate that the transcript mentioned in the statute is not a recordation of testimony, but a record of the proceedings.

[¶23] Finally, Father's interpretation of "transcript" would result in a filing fee only in appeals in which a transcript of testimony was part of the designated record-an absurd result.

[¶24] Wyo. Stat. Ann. § 5-3-206(a)(vii) requires a filing fee of $85.00 for Father's appeal, even though no transcript of testimony is included in the designated record. The district court clerk properly required payment of that fee.

[¶25] Affirmed.

FOX, Justice, concurring in part and dissenting in part, in which DAVIS, Chief Justice, joins.

[¶26] I agree with the majority that Wyo. Stat. Ann. § 5-3-206(a)(vii) requires an $85.00 filing fee for Father's appeal. I write separately because I would address Father's argument concerning the mandatory minimum child support obligation in Wyo. Stat. Ann. § 20-2-304(b) and hold that it is unconstitutional because it violates the Supremacy Clause.

[¶27] "We do not function for the purpose of ... making an appeal disappear, but exist to administer justice to those who come to settle their disputes." Essex Holding, LLC v. Basic Prop., Inc. , 2018 WY 111, ¶ 39, 427 P.3d 708, 720 (Wyo. 2018) (quoting Blake v. Rupe , 651 P.2d 1096, 1114 (Wyo. 1982), superseded on other grounds as recognized in Paxton Res., L.L.C. v. Brannaman , 2004 WY 93, ¶ 13, 95 P.3d 796, 800 (Wyo. 2004) ). It's true this appeal is messy-the record is sparse, there is no order from which we can assess the district court's decision, Father is pro se, Mother did not file a brief, and the Attorney General filed a limited response. But there is no doubt that Father challenges the constitutionality of the statutory minimum child support obligation imposed upon him. See Majority Opinion at ¶ 10 ("Father's motion contested the validity of the child support order .... Specifically, he claimed the minimum obligation under Wyo. Stat. Ann. § 20-2-304(b) violates federal law."). We have addressed issues less clearly raised and briefed. We applied a rule of waiver under W.R.Cr.P. 12, even though the State had not raised that issue because "the parties' briefing unearthed the question[.]" Rodriguez v. State , 2019 WY 25, ¶ 23, 435 P.3d 399, 405 (Wyo. 2019). Here, we need not dig to identify the issue necessary to resolve Father's appeal. See Hawes v. State , 2014 WY 127, ¶ 8 n.2, 335 P.3d 1073, 1076 n.2 (Wyo. 2014) (overlooking any ambiguity in the statement of the issues and looking to the substance of the argument); Doctors' Co. v. Ins. Corp. of Am. , 864 P.2d 1018, 1028 (Wyo. 1993) ("This court has previously considered issues not properly raised by appellants when review was permitted by the record and the facts."); Hance v. Straatsma , 721 P.2d 575, 577 (Wyo. 1986) (where, although we were "unable to discern whether Hance challenge[d] the sufficiency of the evidence to support the judgment or the county court's failure to find that he was not liable under the warranty, or both," we addressed both possible contentions); J & M Inv. v. Davis , 726 P.2d 96, 97 n.2 (Wyo. 1986) (considering appellant's improperly raised issue); Cline v. Safeco Ins. Co. , 614 P.2d 1335, 1337 (Wyo. 1980) (discerning and addressing the appellant's "main argument" despite an inadequate statement of the issues). Any reluctance to address Father's imperfectly presented argument should be overcome by the leniency we afford pro se parties. See Rammell v. Mountainaire Animal Clinic, P.C. , 2019 WY 53, ¶ 14, 442 P.3d 41, 46 (Wyo. 2019) (applying "the leniency we have the discretion to afford pro se litigants"); In re U.S. Currency Totaling $7,209.00 , 2012 WY 75, ¶ 31, 278 P.3d 234, 241 (Wyo. 2012) (noting a pro se litigant's entitlement to "some leniency" but finding no plain error where he did not reasonably adhere to procedural rules and requirements); Young v. State , 2002 WY 68, ¶ 9, 46 P.3d 295, 297 (Wyo. 2002) (declining to summarily affirm appeal because of leniency we afford pro se parties); In re KD , 2001 WY 61, ¶¶ 7-9, 26 P.3d 1035, 1036-37 (summarily affirming appeal despite pro se status); Osborn v. Emporium Videos , 848 P.2d 237, 240, 242 (Wyo. 1993) (majority and dissenting opinions disagreeing as to whether pro se litigant was entitled to leniency); see also Michael J. Klepperich, Just How Liberal is Liberal?: Wyoming Courts' Treatment of Civil Pro Se Pleadings , 18 Wyo. L. Rev. 351 (2018) (noting the lack of objective standards for assessing pro se leniency).

[¶28] The state of the record does not preclude review of the issue Father raises. Wyoming participates in the federally funded child support program established through Title IV-D of the federal Social Security Act. Wyo. Dep't of Family Serv. Child Support Program Policy Manual §§ 2.1-2.2 (Jan. 2017), available at http://wychildsupportpolicymanual.wyo.gov/2-structure-and-authority/2-1-struct-authority-introduction. This program requires participating states to adopt child support guidelines as a condition of receiving federal funds. 42 U.S.C. §§ 654 - 55. The state statute under which Father's child support obligation was set provided that "in no case shall the support obligation be less than fifty dollars ($50.00) per month[.]" Wyo. Stat. Ann. § 20-2-304(b), repealed by Laws 2018, ch. 42, § 2. The statute creates a conclusive presumption that $50 is the correct amount of child support to be awarded, regardless of the parent's income or circumstances. This directly conflicts with 42 U.S.C. § 667(b)(2), which provides:

There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support , that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.

(Effective Oct. 13, 1988; emphasis added.) See also 45 C.F.R. § 302.56(f) ("Effective October 13, 1989, the State must provide that there shall be a rebuttable presumption , in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established under paragraph (a) of this section is the correct amount of child support to be awarded.") (effective Oct. 13, 1989) (amended Dec. 20, 2016) (emphasis added). Congress may impose terms and conditions on federally funded state programs. King v. Smith , 392 U.S. 309, 333 n.34, 88 S.Ct. 2128, 2141 n.34, 20 L.Ed.2d 1118 (1968). As a condition of receiving Title IV-D funds, Wyoming must comply with these conditions. The $50 mandatory minimum plainly contradicts the rebuttable presumption requirement in 42 U.S.C. § 667(b)(2), and I would hold it invalid under the Supremacy Clause. U.S. Const. art. VI; Wyo. Const. art. I, § 37 ; Guy v. Lampert , 2016 WY 77, ¶ 24, 376 P.3d 499, 504 (Wyo. 2016) (stating that preemption doctrine arises from the Supremacy Clause and invalidates state laws that are contrary to federal law and nullifies them to the extent they actually conflict with federal law); see also Marriage of Gilbert , 88 Wash.App. 362, 370-71, 945 P.2d 238, 241-42 (1997) (holding Supremacy Clause preempted statutory provision mandating minimum $25 per child support obligation because it contradicted section 667(b)(2) 's rebuttable presumption requirement); Rose ex rel. Clancy v. Moody , 83 N.Y.2d 65, 71-72, 607 N.Y.S.2d 906, 629 N.E.2d 378 (1993) (holding Supremacy Clause preempted mandatory $25 minimum support obligation because 42 U.S.C. § 667(b)(2) directly prohibited a state from enacting child support guidelines that do not permit rebuttal) (citing In re Haney v. Haney , 188 A.D.2d 999, 1000, 592 N.Y.S.2d 531 (1992) ). Cf. A.M.S. ex rel. Farthing v. Stoppleworth , 694 N.W.2d 8, 11-12 (N.D. 2005) (holding child support guidelines were not preempted because they provided several grounds on which presumptively correct award could be rebutted).

[¶29] For these reasons, I would address the issue Father raises and find that Wyo. Stat. Ann. § 20-2-304(b), as applied to Father, violates the Supremacy Clause.

      The record on appeal does not indicate whether the hearing was a contested evidentiary hearing or whether counsel and the parties presented an agreement to the court.

      Because there were no financial affidavits and no findings of the parties' actual incomes or a statutorily presumed support amount, it cannot be determined whether the child support amount was based on actual incomes when the hearing occurred, anticipated incomes at Father's expected release, or solely on a statutory minimum.

      Rule 6(c)(4) states that "[a]ny motion, under Rules 50(b) and (c)(2), 52(b), 59 and 60(b), not determined within 90 days after filing shall be deemed denied unless, within that period, the determination is continued by order of the court ...." Thus, Father's motion was deemed denied on July 2, 2018, ninety days after filing, excluding Sunday.

      Today, a monthly income of $846.00 is the starting point of the presumptive table. Wyo. Stat. Ann. § 20-2-304 (LexisNexis 2017). In 2011, a monthly income of $833.00 was the starting point of the presumptive table. Wyo. Stat. Ann. § 20-2-304 (LexisNexis 2011).

      The court's findings-which considered the needs of the children and the timing of Father's release-do not support an argument that the court applied an irrebuttable presumption.

      The Legislature repealed Wyo. Stat. Ann. § 20-2-304(b) in 2018. Wyo. Sess. Laws 2018, ch. 42, § 2, effective July 1, 2018.