IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 56

APRIL TERM, A.D. 2013

May 9, 2013

THE STATE OF WYOMING,

DEPARTMENT OF FAMILY

SERVICES, CHILD SUPPORT

ENFORCEMENT,

Appellant

(Intervenor),

v.

CONNIE M. POWELL,

Appellee

(Defendant).

S-12-0192

Appeal from the District Court of Hot Springs County

The Honorable Robert E. Skar, Judge

Representing Appellant:

Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy 

Attorney General; Jill E. Kucera, Senior Assistant Attorney General; and Jared 

Crecelius, Senior Assistant Attorney General.

Representing Appellee:

No appearance filed.

Before KITE, C.J., HILL, VOIGT, BURKE, and DAVIS JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be

made before final publication in the permanent volume.
1

HILL, Justice.

[¶1] In 2009, the Wyoming Department of Family Services (Department) filed an 

action to enforce a 2003 order requiring Connie Powell to pay child support and certain 

related expenses. Instead of enforcing the 2003 order, the district court set aside the 2003 

order, ordered that the child support obligation be recalculated, and directed that the

revised child support obligation be applied retroactive to 1999, the date the children’s 

father obtained custody of the children. The Department appeals, contending that the 

district court abused its discretion in setting aside the 2003 order. We hold that the 

district court was without jurisdiction to modify the 2003 child support order and remand 

for entry of an order consistent with our direction herein.

ISSUE

[¶2] The Department presents the following issue on appeal:

In 2012, the district court ordered a retroactive recalculation

of child support against Connie Powell, the non-custodial 

mother. The district court also set aside a 2003 judgment 

entered against Ms. Powell for child support arrears and 

medical and travel expenses even though neither the mother 

nor the father filed a motion or petition requesting 

modification of child support or relief from the judgment. 

Did the district court abuse its discretion by retroactively 

modifying the child support order and setting aside the 

judgment without a proper petition or motion from a party 

requesting such relief?

FACTS

[¶3] Charles Ferree (Father) and Connie Powell (Mother) divorced in 1990. Mother 

and Father had two children as issue of the marriage, CF and WF, and originally entered 

into a Property Settlement and Custody Agreement that gave Mother primary custody of 

the children and established Father’s child support obligation. In 1991, Mother and 

Father stipulated to a modification of their agreement, which provided that each parent 

would have custody of one child and neither would pay child support. The agreement 

was approved by a May 16, 1991 Order Modifying Decree of Divorce.

[¶4] In 1998, Mother and Father stipulated to transfer the case from the First Judicial 

District to the Fifth Judicial District, Hot Springs County, since Mother lived out of state 

and Father lived in Hot Springs County. In 1999, Mother and Father again stipulated to a 

modification of their divorce decree, this time agreeing that Father would have primary 

custody of both children, Mother would be responsible for half the children’s medical
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expenses not covered by insurance and half of the travel expenses for the children’s visits 

with Mother, and Mother would have no responsibility to pay child support. In August 

1999, the district court entered an order approving the stipulated modification except the 

terms governing child support. Regarding child support, the court ruled that the parties’

stipulation was contrary to law, and it ordered:

Plaintiff and Defendant shall submit financial

affidavits to the Court within twenty (20) days of this Order,

along with any further stipulations as to child support. If

child support is not resolved within thirty (30) days, the

parties shall request a hearing before the Court.

[¶5] Neither Mother nor Father filed financial affidavits or requested a hearing on the 

child support as ordered, and the case remained inactive until May 2003, when Father 

filed a Motion for Order to Appear and Show Cause. Through that motion, Father 

alleged that Mother had made no payments toward her half of the children’s expenses or 

any child support payments since entry of the 1999 order. Father requested that the 

district court order Mother to pay her half of the children’s expenses and that:

The Court order the Defendant to supply copies of tax

returns from 1999 to present and a financial affidavit to

determine whether or not the Defendant is capable of working

to support the minor children and determine child support for

both children either at the statutory minimum or pursuant to

Wyoming Statutes, and make said payments retroactive from

the Court’s Order of August 23, 1999.

[¶6] Following a hearing on June 30, 2003, the district court entered an Order on 

Medical and Child Support, dated August 4, 2003. The court made findings concerning 

medical and travel-related expenses and granted Father the sum of $21,027.85 “for 

arrearages for child support, medical care, and transportation costs of the minor children 

as of June 30, 2003.” Concerning child support, the order stated, in part:

7. An Order was issued by this Court changing

primary custody of the minor child, [WF], which order was

signed and filed on August 23, 1999, which ordered the

parties to submit appropriate wage affidavits for

determination of proper child support.

8. Proper affidavits were not submitted.

9. Pursuant to the Order to Appear and Show Cause

signed by this Court on May 23, 2003, the Defendant and
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Plaintiff supplied income affidavits and copies of pay stubs.

Based upon the pay stub submitted by the Defendant, she

currently has an average net income of $1,693.29 per month.

10. Based upon pay stubs submitted by the Plaintiff,

he currently has an average net monthly income of $3,600.93.

11. Based upon the child support guidelines for two

children, the current total amount of support due for the

support of the child[ren] would be $1,218.78.

12. Since Plaintiff, as father, has primary custody of

the child[ren], the percentage of support owed by the mother

is $389.81 per month.

13. Said support should be set retroactive to the date

of custody granted by this Court on August 23, 1999,

resulting in a total arrearage of $17,931.26 in child support

arrearage through and including June 30, 2003. The next

regularly scheduled payment due by the Defendant to the

Plaintiff for child support is July 23, 2003, and child support

payments are due on the 23rd of each month thereafter.

[¶7] Mother did not appeal this order, and the case again remained inactive until 

December 2003. On December 1, 2003, Mother filed a Petition for Modification of 

Order requesting that she be awarded primary custody of the parties’ daughter, WF. 

Father responded to Mother’s motion on February 10, 2004, by filing a Motion to Modify 

Visitation, requesting that Mother be permitted only supervised visitation with the 

children, and a Motion for Order to Appear and Show Cause, alleging Mother had failed 

to comply with the August 2003 child support order.

[¶8] The district court held a hearing on the motions on March 4, 2004. This hearing 

was not reported, and the court did not enter a written order following the hearing. On 

March 9, 2004, Father’s attorney submitted a letter to the court, apparently seeking 

clarification and guidance regarding what occurred during the March 4th hearing. The 

letter from Father’s attorney stated that during the hearing the court denied Mother’s 

custody motion and Father withdrew his visitation motion, and stated as follows 

concerning child support:

The Court made a ruling regarding the Show Cause

that despite the Defendant having testified that she has never

paid any support for the minor children, that the Plaintiff had

unclean hands due to his failure to file a financial affidavit.
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The Court stated there was no financial affidavit in the Court

file. Upon making an investigation after Court, it was found

both Plaintiff and Defendant had financial affidavits on file

with the Court, but they had been placed in a separate, sealed

envelope, marked "Confidential Financial Information".

. . . .

Please notify the parties if the Order simply needs to

be amended or whether or not the old Order needs to be put

into effect and we need to request a rehearing on the matter. 

... If no direction is given by the Court, the Defendant will 

file for a rehearing in 10 days.

[¶9] The record contains no indication that either party requested a new hearing 

following this correspondence, and the district court did not enter an order subsequent to 

the letter. The case again remained inactive until 2009. On October 14, 2009, the 

Department filed an Affidavit and Motion for Order to Show Cause and for Judgment of 

Contempt against Mother based on Mother’s alleged failure to pay child support and 

related expenses. On March 31, 2010, the court issued an Order Denying Contempt and 

Requiring Information to be Submitted to the Court. In so ordering, the court found that 

Mother’s failure to pay child support was not willful but was instead a result of confusion 

over the court’s order following the March 2004 hearing. The court thus ordered that the 

parties or their attorneys submit “all relevant notes or other documents from the March 4,

2004 hearing to provide the court a basis for a written order from said hearing.”

1

[¶10] On September 2, 2010, the Department filed a Motion for Order from March 4, 

2004 Hearing. Through its motion, the Department informed the district court that no 

information was submitted in response to the court’s order requiring the submission of 

information, and it requested that the court set a hearing to determine the content of the 

March 4, 2004 order.

[¶11] On March 14, 2012, Mother filed a Request for Entry of Order on Hearing Held 

March 4, 2004. Mother attached to her request an affidavit from the attorney who 

represented her in the March 4, 2004 hearing. That attorney attested as follows:

To the best of my knowledge and belief, at that

hearing, because of plaintiff having “unclean hands” for 

failure to file financial records, the Court order dated August 

4, 2003 was withdrawn and Plaintiff, by and through his 

attorney ..., was instructed to file a new motion if so desired.

 

1 Between the March 4, 2004 hearing and the Department’s 2009 contempt motion, the district court

judge who presided over the March 2004 hearing retired and a new district court judge was appointed.
5

[¶12] On May 21, 2012, the district court held a hearing on the Department’s motion. 

During that hearing, the court indicated that from the record, it was unable to resolve 

what occurred during the March 2004 hearing and it was thus willing to take testimony 

on the question. The only testimony offered was from Mother, who testified that she 

could not recall how the issue of child support was raised during the March 2004 hearing. 

She further testified:

He did rule at the time that he was modifying or

dismissing the previous 2003 court order because it was

stated that Mr. Ferree had unclean hands by not submitting

his financial affidavit, and that if he wished to pursue further

child support, that they would need to file a new motion with

the Court, and at the time I was told that the order was

dismissed.

[¶13] On June 29, 2012, the district court issued an Order Setting Aside August 4, 2003 

Judgment and Child Support Obligation. The court found and ordered as follows:

1. The order from August 4, 2003 is set aside,

including the child support provisions, arrears provisions, and

the judgments for child support arrears, medical arrears and

travel expenses.

2. Child support shall be re-calculated and shall be

retroactive to the date the father obtained custody of the

children. The calculation shall be based on the incomes of

the parties and the statutory guidelines in effect during 2004.

3. The recalculation will not include travel or medical

expenses since the August 4, 2003 order does not clearly

explain how those expenses were calculated for judgment

purposes. Charles Ferree may petition the court for said

travel and medical expenses that were included in the August

4, 2003 judgment if he chooses.

[¶14] The Department timely filed a notice of appeal. Father did not participate in the 

2012 proceedings or in this appeal. Mother did not participate in the appeal to this Court.

STANDARD OF REVIEW

[¶15] A district court’s decision to modify a divorce decree is reviewed for an abuse of

discretion. Rocha v. Rocha, 925 P.2d 231, 233 (Wyo. 1996). “Judicial discretion is a 

composite of many things, among which are conclusions drawn from objective criteria; it
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means exercising sound judgment with regard to what is right under the circumstances

and without doing so arbitrarily and capriciously.” Hanson v. Belveal, 2012 WY 98, ¶ 4, 

280 P.3d 1186, 1192 (Wyo. 2012) (quoting Selvey v. Selvey, 2004 WY 166, ¶ 15, 102 

P.3d 210, 214 (Wyo. 2004)). An abuse of discretion occurs when a court’s decision 

exceeds the bounds of reason or constitutes an error of law. Rocha, 925 P.2d at 233 

(citing Cranston v. Cranston, 879 P.2d 345, 348 (Wyo. 1994)).

[¶16] Because a court has jurisdiction to modify a divorce decree only as provided by 

statute, this appeal also presents jurisdictional issues, which are questions of law that this 

Court reviews de novo. Hall v. Park County, 2010 WY 124, ¶ 3, 238 P.3d 580, 581 

(Wyo. 2010); Thomas v. Thomas, 983 P.2d 717, 719 (Wyo. 1999).

DISCUSSION

[¶17] In our view, the first question that must be addressed in this appeal is whether the 

district court had statutory authority to enter its order vacating the 2003 child support 

order and to enter a new order retroactive to 1999. We must conclude that the court did 

not have such authority.

[¶18] This Court has, on a number of occasions, addressed a district court’s authority to 

modify a divorce decree and the statutory limitations on that authority. We have held:

Generally, courts have “only that authority to act which is 

conferred by the subject statute.” Bush v. State, 2003 WY 

156, ¶ 9, 79 P.3d 1178, 1183 (Wyo. 2003) (quoting Merkison 

v. State, 996 P.2d 1138, 1141 (Wyo. 2000)). It is well settled 

that divorce is purely a statutory process, with courts having 

no authority in such proceedings other than that provided by 

statute. Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 956 

(1937); 24 Am.Jur.2d Divorce and Separation § 7 (2008). 

This limitation extends to the court’s power to modify a 

divorce decree. Aragon v. Aragon, 2005 WY 5, ¶ 10, 104 

P.3d 756, 759-60 (Wyo. 2005); Smith v. Smith, 895 P.2d 37, 

41 (Wyo. 1995); CSP v. DDC, 842 P.2d 528, 531 (Wyo.

1992); 24 Am.Jur.2d Divorce and Separation § 369 (2008).

Weiss v. Weiss, 2009 WY 124, ¶ 13, 217 P.3d 408, 411-12 (Wyo. 2009); see also

Hanson, ¶ 17, 280 P.3d at 1192-93.

[¶19] The statute governing modification of a child support order provides, in relevant 

part:

(a) Any party, or the department of family services in 
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the case of child support orders being enforced by the

department, may petition for a review and adjustment of any

child support order that was entered more than six (6) months

prior to the petition or which has not been adjusted within six

(6) months from the date of filing of the petition for review

and adjustment. The petition shall allege that, in applying the

presumptive child support established by this article, the

support amount will change by twenty percent (20%) or more

per month from the amount of the existing order. The court

shall require the parents to complete a verified financial

statement on forms approved by the Wyoming supreme court,

and shall apply the presumptive child support set out in this

article in conducting the review and adjustment. If, upon

applying the presumptive child support to the circumstances

of the parents or child at the time of the review, the court

finds that the support amount would change by twenty

percent (20%) or more per month from the amount of the

existing order, the court shall consider there to be a change of

circumstances sufficient to justify the modification of the

support order. The provisions of this section do not preclude a

party or assignee from bringing an action for modification of

a support order, based upon a substantial change of

circumstances, at any time. Every three (3) years, upon the

request of either parent or, if there is a current assignment of

support rights in effect, upon the request of the department,

the court, with respect to a support order being enforced

under this article and taking into account the best interests of

the child involved, shall review and, if appropriate, adjust the

order in accordance with the guidelines established pursuant

to this article. Any adjustment under the three (3) year cycle

shall be made without a requirement for a showing of a

change in circumstances. ...

. . . .

(c) In addition to the petition authorized under

subsection (a) of this section, the court on its own motion, or

the department without petitioning the court, may increase

monthly child support payments to include amounts for

arrearages or may decrease the monthly child support

payment in cases of emergencies or if the arrearages are paid.

Any action by the department to increase monthly child

support payments under this subsection shall allow the

obligor a reasonable opportunity to contest the action in 
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accordance with the Wyoming Administrative Procedure Act

and rules and regulations adopted by the department.

(d) An order for child support is not subject to

retroactive modification except:

(i) Upon agreement of the parties; or

(ii) The order may be modified with respect to any

period during which a petition for modification is pending,

but only from the date notice of that petition was served upon

the obligee as provided by the Wyoming Rules of Civil

Procedure, if the obligor or the department is the petitioner, or

to the obligor, if the obligee or the department is the

petitioner.

Wyo. Stat. Ann. § 20-2-311 (LexisNexis 2011).

[¶20] The district court was not presented with any of the above-quoted circumstances 

that would statutorily authorize it to modify the 2003 child support order. None of the 

parties, Mother, Father, or the Department, moved for a modification of the child support 

order, and the circumstances were not as described in § 20-2-311(c), such that the court 

could act on its own motion to modify. See also Connors v. Connors, 769 P.2d 336, 348-

49 (Wyo. 1989) (recognizing petition to modify child support as a statutory prerequisite 

to court’s jurisdiction to act). Similarly, the court was not statutorily authorized to make 

its modifications retroactive. No petition to modify was pending, and the record contains 

no agreement of the parties to a retroactive modification. See also Thomas, 983 P.2d at 

720 (holding that by statute child support order may not be modified retroactively beyond 

the date of petition to modify unless parties agree to modification).

[¶21] Because the district court did not have before it a petition to modify the August 

2003 child support order, or a statutory circumstance authorizing the court to act on its 

own motion, the court was without jurisdiction to modify the child support order. 

Moreover, our holding is not affected by the fact that the court was attempting to give 

effect to the 2004 proceedings.

[¶22] The record is of course entirely unclear as to what occurred during the March 2004 

hearing. What is clear, however, is that Mother did not appeal the August 2003 child 

support order, she did not file a W.R.C.P. 60 motion seeking relief from the child support 

order, and she did not file a petition to modify the child support order. Whatever may 

have occurred during the unreported March 2004 hearing, the court had before it only 

Father’s contempt and visitation motions and Mother’s custody motion. We thus 

conclude that to the extent the court in 2004 intended to order that the 2003 child support 

order be modified or vacated and for such modification to be applied retroactively, the
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court was without jurisdiction to enter such an order and the order was void. See Weiss, 

¶ 14, 217 P.3d at 412 (holding district court without jurisdiction to modify order where 

no petition to modify had been filed, dismissing appeal, and remanding for entry of an 

order vacating modification order).

[¶23] This Court has recognized that the limitations on a court’s jurisdiction to modify a 

divorce decree serve important policy goals in the finality and predictability of 

judgments. See Hanson, ¶ 18, 280 P.3d at 1193; Smith v. Smith, 895 P.2d 37 at 41 (Wyo. 

1995). We have also observed the policy served by not allowing retroactive 

modifications of child support orders:

Furthermore, allowing retrospective modifications of divorce

decrees may encourage default. A party might decide to stop

payment and allow arrearages to accrue to a substantial

amount, with the hope and anticipation that the court will

cancel the accrued payments owed to the receiving party. We

prefer a rule which encourages a party to seek modification of

a divorce decree at the moment his financial situation

changes. In the present case, appellant chose to simply stop

making the required payments. We will not sanction this type

of self-help by allowing retrospective modification of the

decree.

Parry v. Parry, 766 P.2d 1168, 1170 (Wyo. 1989).

[¶24] While we recognize that the district court was attempting to craft an order to 

correct an incomplete record, we conclude that the court exceeded its statutory authority. 

Mother has taken no steps to legally modify the 2003 child support order, and the order 

therefore stands and is subject to enforcement.

CONCLUSION

[¶25] The district court was without jurisdiction to modify the August 2003 child 

support order where no petition to modify had been filed. We therefore dismiss the 

appeal and remand to the district court for entry of an order vacating the Order Setting 

Aside August 4, 2003 Judgment and Child Support Obligation filed on June 29, 2012.

[¶26] The procedural history of this case does not reflect well on the judicial system and 

there are multiple reasons why. However, one fundamental problem is the lack of a 

record. The district court and the parties expended time, effort and resources in the 2004 

hearing and, apparently, a decision was made. No court reporter recorded the 

proceedings or the decision. Whether that was because of the historically outdated 

$45.00 appearance fee required by statute for the reporter, who is a State employee, to
10

appear or the widespread practice of attorneys and judges to proceed without a reporter,

we do not know. The reporter also was not even utilized by the court to memorialize its

order. The attorneys failed to follow the court’s directive to prepare an order consistent 

with the oral ruling and the parties failed to file the financial information the court 

requested, although a letter to the court by the attorney for Father suggested the financial 

affidavits had been filed, but placed in another confidential file. Mother failed to pay any 

child support and now has a substantial financial obligation. And, apparently, no one 

followed up to assure the court’s orders were followed. Worse yet, this process drug out 

for over twelve years. Whether that failure was the result of no system of keeping track 

of deadlines or simple inattention, we do not know. Ultimately, public resources had to 

be expended by the child support enforcement authorities to attempt to recoup child 

support that should have been paid, but the required amount is uncertain. The first judge 

retired and the incoming district judge attempted to make the best of a bad situation, but 

did not have the requisite authority to do so. Finally, the cost and delay of an appeal to 

this Court resulted, and we are left with no choice but to remand the matter for the parties 

to start over. Surely our judicial system, and all of the actors within that system, could do 

better. While a situation as bleak as this one is the exception, similar failures appear in 

far too many cases. The Court believes that it is time for the bench and bar to take a hard 

look at our system and collaborate on procedures that will assure that judges, lawyers, 

and parties consistently perform our respective responsibilities so that situations such as 

those existing in the cases cannot occur.