IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 18

OCTOBER TERM, A.D. 2019

February 12, 2020

ANDREW P. JOHNSON,

Appellant

(Defendant),

v.

KATIE L. JOHNSON,

Appellee

(Plaintiff).

S-19-0120

Appeal from the District Court of Uinta County

The Honorable Joseph B. Bluemel, Judge

Representing Appellant:

Clark D. Stith of Stith Law Office, Rock Springs, Wyoming. 

Representing Appellee:

Farrah L. Spencer and Monica J. Vozakis of Long Reimer Winegar LLP, Evanston, 

Wyoming. 

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

BOOMGAARDEN, Justice.

[¶1] Andrew P. Johnson (Father) appeals from the district court’s decree of divorce and 

order awarding custody and dividing property and debts between him and Katie L. Johnson 

(Mother). Father argues the court abused its discretion when it restricted visitation with 

his four children to two hours of supervised visitation every other week until he addressed 

the court’s concerns regarding his anger, when it divided the marital property, and when 

it found him voluntarily underemployed for declining to work overtime. We conclude the 

court properly ordered supervised visitation and divided the marital property, but abused 

its discretion in calculating Father’s child support amount. We thus affirm in part and 

reverse in part. 

ISSUES

[¶2] We rephrase and reorder Father’s issues on appeal: 

I. Whether the district court abused its discretion in ordering 

supervised visitation.

II. Whether the district court abused its discretion in dividing 

the marital property. 

III. Whether the district court abused its discretion when it 

imputed to Father income attributable to overtime earned 

before the preceding 24-month period when calculating child 

support.

FACTS

[¶3] Mother and Father married in December 2002. In 2015, Father filed for divorce. 

Mother, who was nine months pregnant with their fourth child at the time, obtained a 

protection order against Father and was awarded temporary custody of the children. 

Mother and Father reconciled after their child’s birth later that year and Father dismissed 

the action. 

[¶4] Two years later, Mother obtained a protection order against Father under the 

Domestic Violence Protection Act. The circuit court found an act of domestic abuse 

occurred, granted Mother primary residential custody of the children, and awarded Father 

visitation every other weekend and every Tuesday evening. Mother simultaneously filed 

for divorce. After Father answered the complaint and counterclaimed, Mother moved “for 

a temporary order awarding child custody, suspended or supervised visitation, child 

support, and possession of [the] marital home” due to Father’s history of domestic violence 

and his behavior during a recent visit with their oldest child. The court granted the motion 
2

in January 2018, awarding Father supervised visitation with the children every other 

Saturday for two hours, but reserving any decision on financial matters. 

[¶5] At the one-day bench trial in May 2018, the primary dispute concerned Father’s 

visitation arrangement, the division of marital property, and the amount of child support 

Father would pay. Mother presented testimony from herself, one of Father’s supervisors

regarding overtime available to Father, and a local Sheriff’s Deputy regarding a death 

threat that Father made against Mother. Father presented testimony from himself, several 

of his immediate family members regarding Father’s relationship with Mother and the 

children, and a local real estate agent regarding attempts to sell the marital home and its 

condition. 

[¶6] With respect to supervised visitation, the precise issue revolved around Mother’s 

fear of Father’s temper and abuse. Mother argued that Father’s pattern of abuse made 

supervised visitation in the children’s best interests until Father completed either an anger 

management or domestic violence course, as well as a parenting class. Father disputed 

Mother’s abuse allegations, arguing that he was “a fully capable, competent, loving parent” 

who never had issues with his children until the court ordered supervised visitation. 

[¶7] With respect to division of property, the primary issues were the court’s disposition 

of the marital home and its evaluation of the respective merits of the parties under Wyo. 

Stat. Ann. § 20-2-114(a). In her pretrial memo, Mother requested that the court order the 

sale of the marital home and award 60 percent of the proceeds to her, and 40 percent of the 

proceeds, along with his pension, to Father. But at trial she argued it was in the children’s 

best interests to remain in the marital home, so she should obtain the home after divorce. 

Father argued that granting the home to Mother would unfairly benefit her, and suggested 

that Mother could not perform the maintenance required on the home. He further argued 

that the parties’ best option would be for him to acquire and refinance the home, and pay 

Mother approximately one-half of the equity. 

[¶8] With respect to child support, the crux of the dispute was whether Father was 

voluntarily underemployed. Mother argued that Father worked overtime “any time [it] was 

offered” throughout their marriage until 2015 when he filed for divorce, and that he stopped 

working overtime between 2015 and 2017 so that his child support payments would be 

lower. She argued that the court should find Father voluntarily underemployed because he 

chose not to work overtime in 2016 and 2017, and base his child support on his income 

while “he was working overtime” in 2013 and 2014. Father disagreed with Mother’s 

characterization of his motive for not working overtime, arguing that he stopped working 

overtime after deciding that it “was not in the best interests of me nor was it good for my 

family relationships.” 

[¶9] In its divorce decree, the court awarded Mother sole legal custody and primary 

physical custody of the children, and required Father’s visits to be supervised unless and 
3

until he successfully completed the conditions outlined in the court’s order. The court 

disposed of various property, specifically awarding the marital home to Mother and 

requiring her to refinance the balance of the debt in her own name. It also found Father 

voluntarily underemployed and imputed to him potential overtime income, resulting in a 

$2,300 monthly child support payment instead of the presumptive amount of $1,870. 

Father timely appealed. 

STANDARD OF REVIEW

[¶10] We review the district court’s divorce decree for any abuse of discretion.

Custody, visitation, child support, and alimony are all 

committed to the sound discretion of the district court. Scherer 

v. Scherer, 931 P.2d 251, 253–54 (Wyo. 1997); Triggs v. 

Triggs, 920 P.2d 653, 657 (Wyo. 1996); Basolo v. Basolo, 907 

P.2d 348, 352 (Wyo. 1995). . . . “We do not overturn the 

decision of the trial court unless we are persuaded of an abuse 

of discretion or the presence of a violation of some legal 

principle.” Fink [v. Fink], 685 P.2d [34, 36 (Wyo. 1984)].

A court does not abuse its discretion unless it acts in a manner 

which exceeds the bounds of reason under the circumstances. 

Pinther v. Pinther, 888 P.2d 1250, 1252 (Wyo. 1995) (quoting 

Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo. 1993)). Our 

review entails evaluation of the sufficiency of the evidence to 

support the district court’s decision, and we afford the 

prevailing party every favorable inference while omitting any 

consideration of evidence presented by the unsuccessful party. 

Triggs, 920 P.2d at 657; Cranston v. Cranston, 879 P.2d 345, 

351 (Wyo. 1994). Findings of fact not supported by the 

evidence, contrary to the evidence, or against the great weight 

of the evidence cannot be sustained. Jones v. Jones, 858 P.2d 

289, 291 (Wyo. 1993). Similarly, an abuse of discretion is 

present “‘when a material factor deserving significant weight 

is ignored.’” Triggs, 920 P.2d at 657 (quoting Vanasse v. 

Ramsay, 847 P.2d 993, 996 (Wyo. 1993)).

Jacobson v. Kidd, 2018 WY 108, ¶ 14, 426 P.3d 813, 820 (Wyo. 2018) (quoting MeehanGreer v. Greer, 2018 WY 39, ¶ 14, 415 P.3d 274, 278–79 (Wyo. 2018)).
4

DISCUSSION

I. Supervised Visitation

[¶11] Father forwards various arguments as to why the court abused its discretion when it 

imposed a graduated visitation schedule. He argues that the court abused its discretion by 

not addressing his fundamental right to associate with his children under Wyo. Stat. Ann. 

§ 14-2-206, that insufficient evidence supported the court’s finding that he abused Mother 

and the children, and that it erred by conditioning his visitation rights on obtaining 

counseling for the children. A thorough review of the court’s order and record reveals no 

abuse of discretion.

[¶12] The children’s best interests are “paramount in any award of custody and visitation, 

and the trial court has a large measure of discretion in making that award.” Arnott v. Arnott, 

2012 WY 167, ¶ 31, 293 P.3d 440, 455 (Wyo. 2012) (quoting Stonham v. Widiastuti, 2003 

WY 157, ¶ 17 n.8, 79 P.3d 1188, 1194 n.8 (Wyo. 2003)). Wyo. Stat. Ann. § 20-2-201(a)

(LexisNexis 2019) outlines the non-exclusive list of factors the court must consider when 

determining the children’s best interests:

(i) The quality of the relationship each child has with each 

parent;

(ii) The ability of each parent to provide adequate care for each 

child throughout each period of responsibility, including 

arranging for each child’s care by others as needed;

(iii) The relative competency and fitness of each parent;

(iv) Each parent’s willingness to accept all responsibilities of 

parenting, including a willingness to accept care for each child 

at specified times and to relinquish care to the other parent at 

specified times;

(v) How the parents and each child can best maintain and 

strengthen a relationship with each other;

(vi) How the parents and each child interact and communicate 

with each other and how such interaction and communication 

may be improved;

(vii) The ability and willingness of each parent to allow the 

other to provide care without intrusion, respect the other 
5

parent’s rights and responsibilities, including the right to 

privacy;

(viii) Geographic distance between the parents’ residences;

(ix) The current physical and mental ability of each parent to 

care for each child;

(x) Any other factors the court deems necessary and relevant.

“No single factor is determinative,” and “depending on the case, different factors will 

present a greater need for emphasis. The one constant is that the resolution must be in the 

[children’s] best interests[.]” Stevens v. Stevens, 2014 WY 23, ¶ 26, 318 P.3d 802, 811 

(Wyo. 2014). “Household abuse is always improper and contrary to the [children’s] best 

interests[.]” Gjertsen v. Haar, 2015 WY 56, ¶ 39, 347 P.3d 1117, 1128 (Wyo. 2015). 

[¶13] The court clearly analyzed each statutory factor and found that all but one—the 

geographic difference between the parties (which was neutral)—favored Mother. Its 

analysis formed the basis not only for its determination that Mother should have sole legal 

and primary physical custody of the children, but also that Father’s visitation should be 

supervised. 

• Factor (i) favored Mother because she was the primary 

caregiver, See Martin v. Hart, 2018 WY 123, ¶ 22, 429 P.3d 

56, 64 (Wyo. 2018) (“While not determinative, primary 

caregiver status is a weighty factor that the district court must 

consider.”), and Father seemed unwilling to place the 

children’s interests before his own. 

• Factor (ii) favored Mother because, although Father 

provided the financial resources for the family, Mother “was 

able to work outside the home for a limited time” while 

providing “hands-on care of the children and their day-to-day 

activities.” 

• Factor (iii) favored Mother because she “has assured the 

children’s physical and mental health needs are met” and 

because “[c]ontinuing to expose the children to [Father’s] 

unfettered conduct is not in their best interests. [Father’s] 

control and violence make him an inappropriate role model for 

the children.” 
6

• Factor (iv) favored Mother because she “will comply with 

any court order concerning the children visiting and staying 

with their father” while Father would not. 

• Factor (v) favored Mother because of Father’s history of 

control and abuse of Mother and the children; consequently, 

“unsupervised visitation would be more detrimental to the 

children” than a graduated visitation schedule contingent on 

Father recognizing and addressing his history of abuse. 

• Factor (vi) favored Mother because Father “fails to 

understand his actions and aggression are dangerous if left 

untreated” and Mother “is willing to communicate with 

[Father] about the children and” to comply with Father’s courtordered visitation. 

• Factor (vii) “clearly” favored Mother because “she will not 

denigrate [Father] to the children nor will she prohibit them 

from having” court-ordered contact, and the court could not 

find the same of Father. 

• Factor (viii) was neutral because the 85-mile distance 

between the parties’ residences “will not impact visitation.” 

• Factor (ix) favored Mother because she “is more mentally 

able to care for the children” than Father. 

• For factor (x), the court considered domestic violence and 

abuse, finding that Father abused Mother—often in the 

presence of the children—and that there was some undisputed

and some refuted evidence “of [Father] abusing the children.” 

Wyo. Stat. Ann. § 20-2-201(c) (where “family violence has 

occurred,” the court must “make arrangements for visitation 

that best protects the children and the abused spouse from 

further harm”); Buttle v. Buttle, 2008 WY 135, ¶ 23, 196 P.3d 

174, 180 (Wyo. 2008) (evidence of spousal abuse deserves 

serious weight because of “the negative effects this sort of 

violence can have on children”), overruled on other grounds

by Bruegman v. Bruegman, 2018 WY 49, 417 P.3d 157 (Wyo. 

2018). 
7

[¶14] From these findings, the court reasoned that supervised visitation would be in the 

children’s best interests until Father adequately addressed his anger. Specifically, it 

concluded that:

this is a high conflict case with serious risks to [Mother] and 

the children. The [c]ourt is imposing sole custody with 

[Mother] and supervised visitation upon [Father] to protect the 

children and their primary caregiver and to reduce the impact 

of that high conflict on the children. Although it is painfully 

difficult for this [c]ourt to deny the children, especially [the 

two children closest emotionally to Father], the right to have 

unsupervised visits with their father, this [c]ourt finds it to be 

in the best interests of the children that visitation with [Father] 

continue to be supervised, as previously ordered. To transition 

to unsupervised visits, [Father] must obtain an anger 

evaluation, provide the evaluator with a copy of this decision, 

and comply with the evaluator’s recommendations.

[Father] must begin regular sessions with a licensed counselor 

and must provide proof of compliance with the 

recommendations in an anger evaluation. Additionally, 

[Father] shall be responsible for paying for the children to have 

mental health counseling to work toward reunification.

The court stated that it could not “emphasize strongly enough that the limitations upon 

[Father’s] custody and visitation are the result of his acts of domestic violence and are not 

the fault of anyone else.” 

A. Wyo. Stat. Ann. § 14-2-206

[¶15] Father insists that the court erred by ignoring Wyo. Stat. Ann. § 14-2-206 when it

imposed supervised visitation without first determining whether supervised visitation was 

“the least restrictive means to achieve the [children’s] best interests[.]” Wyo. Stat. Ann.

§ 14-2-206 (LexisNexis 2019) provides:

(a) The liberty of a parent to the care, custody and control of 

their child is a fundamental right that resides first in the parent.

(b) The state, or any agency or political subdivision of the state, 

shall not infringe the parental right as provided under this 

section without demonstrating that the interest of the 

government as applied to the parent or child is a compelling 

state interest addressed by the least restrictive means.
8

Though the statute does not mention courts, Father asserts that district courts are “an arm 

and agency of the state[,]” and thus are required to comply with subsection (b) when 

imposing custody and visitation schedules that infringe a parent’s fundamental right as 

articulated in subsection (a). We disagree. 

[¶16] Had the legislature intended courts to comply with § 14-2-206 when awarding 

visitation in divorce actions, it could and would have said so. But it did not. See Hall v. 

Park Cty., 2010 WY 124, ¶ 12, 238 P.3d 580, 584 (Wyo. 2010). Instead, in Title 14, the 

legislature distinctly prescribes the court’s role in, for example, the adjudication of 

parentage, neglect, and termination of parental rights actions—actions in which the

Department of Family Services (the Department), on behalf of the State of Wyoming, either 

typically or may participate in accordance with subsection (b). See e.g., Wyo. Stat. Ann. 

§§ 14-2-404 (LexisNexis 2019) (authorizing “[t]he district court” to adjudicate parentage), 

14-3-411 (requiring the district attorney to file a neglect petition with “the court if he 

believes action is necessary”), 14-2-310 (permitting an authorized party to file a petition to 

terminate parental rights with “the court”). The court’s prescribed role in Title 14 

adjudications is substantially different from that of the Department, and from the court’s 

prescribed role in deciding divorce action under Title 20. See Wyo. Stat. Ann. § 20-2-

106(c) (LexisNexis 2019) (outlining the court’s role to “make such orders as appear just” 

with regard to children’s custody, support provisions, division of marital property, 

alimony, and restraint of the parties and marital property). Where pertinent, the legislature 

cross-referenced Titles 14 and 20. See, e.g., Wyo. Stat. Ann. § 20-2-401 (cross-referencing 

statutes from Title 14 which apply); see also Wyo. Stat. Ann. § 14-3-435 (cross-referencing 

statutes from Title 20 which apply). Section 14-2-206 contains no such cross reference to 

the court’s authority under Title 20. Absent any indication that the legislature intended § 

14-2-206 to apply to the district court’s determination regarding custody and visitation 

under Title 20, we conclude the district court violated no legal principle and did not abuse 

its discretion when it imposed supervised visitation without considering § 14-2-206. 

Jacobson, ¶ 14, 426 P.3d at 820.

B. Finding That Father Abused the Children

[¶17] Father baldly asserts that the “court’s broad finding that [Father] abused the children 

is not supported by the evidence in the record.” We reject this assertion because Mother’s 

evidence and the favorable inferences to be derived therefrom more than support the court’s 

finding.

1

 Jacobson, ¶ 14, 426 P.3d at 820.

1 We also reject Father’s assertion that the district court improperly used Father’s controlling behavior as a 

factor in imposing supervised visitation. Father cites no pertinent authority to support his argument and 

apparently would have us overturn the district court based on his view of the evidence and the number of 

times the court used the words “control” or “controlling” in a negative context about Father, as compared 

to Mother. This unsupported argument does not warrant further consideration. Wallop v. Wallop, 2004 

WY 46, ¶ 47, 88 P.3d 1022, 1034 (Wyo. 2004) (citation omitted). 
9

[¶18] Mother’s testimony established that to discipline one of the children when she was 

five or six years old, Father pulled her off the top bunk bed, held her with both legs up, and 

“wa[iled] on her” in front of her sister until Mother intervened. Mother’s testimony showed 

that Father routinely abused Mother. She testified that Father “put[] his hands around” her 

neck and “threw [her] down some flights of stairs.” Father’s abuse often occurred in front 

of the children. He testified to one event, during “a verbal altercation” between he and 

Mother, where she slammed the bedroom door and he decided “to make a statement” by 

taking the door off the hinges and replacing it a week later. Mother recalled that Father 

“tore [the door] off the hinges and broke it” in front of the children. Mother also testified 

that he shot and killed three family pets in front of the children, or with the children’s 

knowledge. We have recognized that “[c]hildren are victimized by a climate of violence 

existing between their parents, even if they are not direct targets of the abuse.” RS v. Dept. 

of Family Servs. (In re KLS), 2004 WY 87, ¶ 21, 94 P.3d 1025, 1030–31 (Wyo. 2004) 

(citation omitted). The district court made no mistake in finding Father abused the 

children.

C. Conditioning Visitation on Children’s Mental Health Counseling

[¶19] Father challenges the court-imposed “condition” that if Father wished to transition 

from supervised to unsupervised visitation with his children, he was responsible for the 

cost of the children’s mental health counseling and that he:

obtain an anger evaluation, provide that evaluator a copy of this 

decision, and shall begin regular sessions with a licensed 

counselor. Once Father’s counselor provides proof of 

compliance with the recommendations in the anger evaluation, 

and once the counselor has conferred with the children’s 

counselor(s) and all the counselors approve, visitation shall 

graduate to unsupervised visitation[.]

He argues, but cites no authority, that the court abused its discretion by imposing this 

condition without appointing a guardian ad litem for the children, or meeting, interviewing, 

or hearing testimony from the children. The law and the record amply support the court’s 

finding that it was in the children’s best interests to condition Father’s visitation as it did. 

Jacobson, ¶ 14, 426 P.3d at 820. 

[¶20] As stated above, domestic violence and spousal abuse are always contrary to the 

children’s best interests. Gjertsen, ¶ 39, 347 P.3d at 1128; see also Williams v. Williams, 

2016 WY 21, ¶ 18, 368 P.3d 539, 545 (Wyo. 2016), overruled on other grounds by 

Bruegman, 2018 WY 49, 417 P.3d 157. Upon a finding of spousal abuse or child abuse, 

the court has considerable discretion to “make arrangements for visitation that best protects 

the children and the abused spouse from further harm.” Williams, ¶ 18, 368 P.3d at 545 

(quoting Wyo. Stat. Ann. § 20-2-201(c) (LexisNexis 2015)). Mother testified at length 
10

about Father’s history of abusing her and the children, and that she and one of their 

daughters—who had “resorted to self harm”—were attending counseling at the time of trial 

to address emotional difficulties. In light of this evidence and the court’s finding “that this 

is a high conflict case with serious risks to [Mother] and the children[,]” we have little 

trouble concluding that the court reasonably conditioned Father’s unsupervised visitation 

upon counseling for both him and the children “to work toward reunification.” 

II. Division of Marital Property

[¶21] Father presents a piecemeal attack on that portion of the court’s divorce decree 

dividing marital property, generally gravitating toward the court’s award of the marital 

home and its equity to Mother. He argues the court erred first when it considered various 

evidence to establish the parties’ merits; second, when it failed to establish his pension’s 

present value; and third, when it awarded to Mother the marital home’s equity without first 

extracting and awarding to Father an amount equal to his pre-marital tort award.2

 The court 

did not abuse its discretion for any of these reasons. 

[¶22] Wyo. Stat. Ann. § 20-2-114 governs the disposition of marital property, and states 

in relevant part that a court: 

shall make such disposition of the property of the parties as 

appears just and equitable, having regard for the respective 

merits of the parties and the condition in which they will be left 

by the divorce, the party through whom the property was 

acquired and the burdens imposed upon the property for the 

benefit of either party and children. The court may decree to 

either party reasonable alimony out of the estate of the other 

having regard for the other’s ability to pay and may order so 

much of the other’s real estate or the rents and profits thereof 

as is necessary be assigned and set out to either party for life, 

or may decree a specific sum be paid by either party.

Wyo. Stat. Ann. § 20-2-114(a) (LexisNexis 2019). The disposition of marital property is 

“committed to the sound discretion of the district court.” Porter v. Porter, 2017 WY 77, ¶ 

12, 397 P.3d 196, 198 (Wyo. 2017) (citation omitted). This Court “will not disturb a 

property division in a divorce case, except on clear grounds, as the trial court is usually in 

a better position than the appellate court to judge the parties’ needs and the merits of their 

positions.” Sinclair v. Sinclair, 2015 WY 120, ¶ 7, 357 P.3d 1100, 1102 (Wyo. 2015) 

(quoting Bagley v. Bagley, 2013 WY 126, ¶ 7, 311 P.3d 141, 143 (Wyo. 2013)). “We are

2 Although the parties do not appear to dispute that Father’s tort award was for $64,735, there is some 

dispute as to how much of that award was used as a down payment—Father claims the parties used $62,000

and Mother claims they used $57,000. 
11

not free to retry the case on appeal or substitute our judgment for that of the district [court].” 

Porter, ¶ 16, 397 P.3d at 199 (citing Lopez v. Lopez, 2005 WY 88, ¶ 20, 116 P.3d 1098, 

1103 (Wyo. 2005)).

[¶23] The district court first addressed the parties’ respective merits. “Merit is 

deservedness, goodness.” Grosskopf v. Grosskopf, 677 P.2d 814, 819 (Wyo. 1984). The 

court had to consider “each party’s role in, and contributions to, the marriage and the 

property.” Stoker v. Stoker, 2005 WY 39, ¶ 23, 109 P.3d 59, 65 (Wyo. 2005). It 

acknowledged Father’s significant contributions to the marital estate—stating that “[t]he 

Parties’ equity in the marital home would not have accumulated without [Father]”—but 

then weighed Father’s contribution against his conduct during the marriage and Mother’s 

contribution to the family. More particularly, the court considered Father’s “physical, 

emotional, and psychological abuse” of Mother throughout the marriage. It also remarked 

that there would be no family “without [Mother’s] motherly acumen and hard work.” 

[¶24] Next, the court considered the condition in which each party would be left by the 

divorce. We have stated that “it is necessary to consider not only to whom the property

will be awarded, but also who will be responsible for any debt relating to that property.” 

Dane v. Dane, 2016 WY 38, ¶ 31, 368 P.3d 914, 920 (Wyo. 2016). The court focused its 

attention on Father’s ability to earn approximately four times more income than Mother. 

While Father then earned “more than $42.00 per hour[,]” Mother left “the marriage with a 

limited work history outside the marital home.” 

[¶25] Finally, with respect to Father’s claims, the court considered Father’s pre-marital 

tort award. The court acknowledged the tort award was attributable to Father only, and 

that Father had contributed it to cover the down payment to purchase the land on which 

they built the home. But they both owned the land, and they both signed for and took out 

a construction loan to build the home. The court ultimately found “that the house and 

acreage is a marital asset owned by both” parties, and awarded Mother the entire property, 

“together with its equity.” Mother was required to refinance the remaining debt. 

A. The Respective Merits of the Parties

[¶26] Father argues the court erroneously relied on hearsay evidence of Father’s abuse “to 

punish [him]” through the property distribution, specifically pointing to the court’s 

admission of Exhibit 8, a copy of Mother’s journal entries recounting Father’s abuse of her 

during their marriage, and testimony concerning Father’s death threat against Mother.

3

 

Mother’s testimony alone supported the court’s finding that Father abused Mother. 

3 Father threated to kill Mother during a conversation with his sister. His sister relayed that threat to a 

Colorado law enforcement officer. The Colorado law enforcement officer detailed that threat in a report

(Exhibit 23). A Wyoming deputy located in the same county as Mother received that report, and discussed 

it with Mother. 
12

Accordingly, there was little risk that Exhibit 8 unfairly influenced the court’s evaluation 

of the respective merits of the parties. Cf. Shindell v. Shindell, 2014 WY 51, ¶ 16, 322 P.3d 

1270, 1275 (Wyo. 2014) (reasoning that testimony about an exhibit excluded from the 

record—which “was obviously hearsay”—made the exhibit “essentially meaningless” as 

the testimony put the evidence before the court notwithstanding the court’s exclusion of 

the exhibit). 

[¶27] With respect to admission of hearsay testimony about Father’s death threat against 

Mother, “[t]his [C]ourt has long held that issues not brought before the district court may 

not be reviewed on appeal” unless they are jurisdictional or fundamental in nature. Wallop, 

¶ 47, 88 P.3d at 1034 (citation omitted). Father agreed during trial that witnesses could 

testify to hearsay, and did not object to the Wyoming deputy’s testimony about the content 

of the Colorado police report or to Mother’s testimony relaying what the deputy told her 

concerning the death threat. We will not address Father’s challenge to this testimony for 

the first time on appeal.

4

 Id.

B. Father’s Pension

[¶28] For the first time on appeal, Father argues that the court erred by not conducting a 

present-day valuation of his pension, reasoning that the court needed to know the value of 

property in order to make a “just and equitable” distribution. He attempts to justify his 

failure to make this argument at trial by asserting that Mother “sandbagged” him by 

changing her position as to the disposition of the marital home on the day of trial. His 

argument on this issue is not cogent. Having been denied the opportunity to address 

Father’s concerns at trial, we conclude that the district court did not abuse its discretion by 

awarding Father his pension without calculating its present-day value. Id.

C. Pre-marital Tort Award

[¶29] Father reads the sentence from Dane, ¶ 30, 368 P.3d at 920, where we stated that 

“[i]t is appropriate to identify the party through whom property was acquired and award it 

to that party regardless of whether that results in an equal division of marital assets,” out 

of context to support his assertion that he was entitled to return of his pre-marital tort award

in the marital distribution. While it may be appropriate to return the property to the 

contributing party under the circumstances of a particular case, see id. ¶ 32, 368 P.3d at 

920, we have never stated a court must award property to the party through whom it was 

acquired. In fact, we have stated just the opposite, recognizing that “previous cases have 

4 Father also complains that the court “disparaged [him] for controlling the finances” when it should have 

weighed that control in his favor. We will not reweigh factors on appeal. See Porter, ¶ 16, 397 P.3d at 199 

(citing Lopez, ¶ 20, 116 P.3d at 1103). Father also fails to account for the district court’s recognition that 

Father’s control was a double-edged sword when it came to the family’s finances. While the court credited 

Father’s frugality as the reason the parties’ have the level of equity in the marital home, it also suggested

that his “control” inhibited Mother from equally contributing to the marital estate. 
13

established that a party is not automatically entitled to all of that property.” Zaloudek v. 

Zaloudek, 2009 WY 140, ¶ 16, 220 P.3d 498, 502–03 (Wyo. 2009) (citing Humphrey v. 

Humphrey, 2007 WY 72, ¶ 12, 157 P.3d 451, 454 (Wyo. 2007)). 

[¶30] The court had considerable discretion to dispose of the property as appeared “just 

and equitable.” Wyo. Stat. Ann. § 20-2-114(a); see also McMurry v. McMurry, 2010 WY 

163, ¶ 9, 245 P.3d 316, 320 (Wyo. 2010). In exercising its discretion, the court 

acknowledged that the parties used the pre-marital tort award to purchase the property on 

which they built the marital home, but it weighed that contribution with other factors such 

as the respective earning abilities of Mother and Father to determine a just and equitable 

property division.

The court finds it is most important that [Mother] and the 

children have a stable home that is adequate and affordable 

where they can live after the divorce. [Father] has earning 

abilities that far exceed those of [Mother]. Although [Father] 

has argued the home and acreage require more care than 

[Mother] can provide to keep it up, the [c]ourt finds [Mother] 

is able to care for the property adequately.

The court did not abuse its discretion in weighing the competing concerns and awarding 

the home to Mother without extracting from the equity an amount equal to Father’s premarital tort award. See Jacobson, ¶ 14, 426 P.3d at 820.

III. Child Support

[¶31] Father argues that the district court abused its discretion when it found him 

voluntarily underemployed and imputed to him income equivalent to that which he earned 

while working overtime more than 24 months preceding trial. We agree, and conclude that 

the plain meaning of Wyo. Stat. Ann. § 20-2-303(a)(ii) prohibits a court from considering 

overtime not worked in the preceding 24-month period when determining whether a party 

is voluntarily underemployed.

[¶32] At trial, Mother presented two separate child support calculations utilizing the 

statutory presumptive formula in § 20-2-304. She based her first calculation on Father’s 

2017 net monthly earnings of $6,215, which would require Father pay $1,870 per month. 

The parties agreed that this calculation represented the statutory presumptive amount of 

child support. However, Mother pointed to Father’s refusal to work overtime since 2015, 

and argued that the court should instead base its calculation of child support on Father’s 

income while he worked overtime. She offered her second calculation using Father’s 2013 
14

and 2014 net monthly earnings of $8,310. The second calculation would require Father to 

pay $2,300 per month.

5

 The court found:

Beginning May 1, 2019, Father shall pay Mother child support 

in the sum of $2,300.00 each month. Under W.S. § 20-2-

307(b)(xi), the Court has deviated from the presumptive 

amount, calculated under W.S. § 20-2-304(a)(iv), and finds 

Father has the employment experience, history, and training to 

take advantage of lucrative and regularly available overtime 

opportunities. The Court further finds Father has repeatedly 

forfeited overtime and purposely remained under-employed. 

His supervisor testified that Father is realistically able to earn 

the imputed income. Consequently, the child support 

calculation is based upon Father’s monthly income of 

$8,310.00.

[¶33] “While the district court exercises discretion in establishing child support, that 

discretion is guided by the applicable statutory provisions.” Opitz v. Opitz, 2007 WY 207, 

¶ 8, 173 P.3d 405, 408 (Wyo. 2007) (citations omitted). Section 20-2-304 establishes the 

guidelines for calculating the statutory presumptive child support, “based on factors 

including the parents’ respective incomes,” among other factors. Id.; see Plymale v. 

Donnelly, 2007 WY 77, ¶¶ 31–33, 157 P.3d 933, 940 (Wyo. 2007). When computing the 

parents’ respective incomes, the statute specifies which sources of income a court may 

properly consider. Wyo. Stat. Ann. § 20-2-303(a)(ii). 

(ii) “Income” means any form of payment or return in money 

or in kind to an individual, regardless of source. Income 

includes, but is not limited to wages, earnings, salary, 

commission, compensation as an independent contractor, 

temporary total disability, permanent partial disability and 

permanent total disability worker’s compensation payments, 

unemployment compensation, disability, annuity and 

retirement benefits, and any other payments made by any 

payor, but shall not include any earnings derived from 

overtime work unless the court, after considering all 

overtime earnings derived in the preceding twenty-four 

(24) month period, determines the overtime earnings can 

reasonably be expected to continue on a consistent basis. In 

determining income, all reasonable unreimbursed legitimate 

business expenses shall be deducted. Means tested sources of 

5 Father’s net monthly earnings in 2013 were approximately $8,008, and in 2014 were approximately 

$8,611. 
15

income such as Pell grants, aid under the personal 

opportunities with employment responsibilities (POWER) 

program, supplemental nutrition assistance program and 

supplemental security income (SSI) shall not be considered as 

income. Gross income also means potential income of 

parents who are voluntarily unemployed or 

underemployed;

Id. (emphasis added). 

[¶34] Wyo. Stat. Ann. § 20-2-303(a)(ii) is clear and unambiguous. “We must therefore 

give effect to the plain and ordinary meaning of the words used in it, and we need not 

invoke our longstanding rules of statutory construction.” Dellit v. Tracy, 2015 WY 153, 

¶ 20, 362 P.3d 353, 357 (Wyo. 2015) (citation omitted). The statute clearly prohibits the

district court from including in its child support calculation “any earnings derived from 

overtime work unless the court, after considering all overtime earnings derived in the 

preceding twenty-four (24) month period, determines the overtime earnings can reasonably 

be expected to continue on a consistent basis.” Wyo. Stat. Ann. § 20-2-303(a)(ii). Here, 

the court exceeded this express limitation on the inclusion of overtime income when, under 

the guise of voluntary underemployment, it considered and imputed to Father overtime 

income earned more than 24 months prior to Mother’s divorce action.6

 

[¶35] We recognize that § 20-2-307(b)(xi) permits a court to deviate from the statutory

presumptive amount and impute income to a voluntarily underemployed parent. Although 

subsection -307(b)(xi) nowhere mentions overtime, subsection (G) requires the court

making a voluntary underemployment determination to consider “[w]hether the parent is 

realistically able to earn imputed income.” Subsection -303(a)(ii) itself defines “gross 

income” to include the potential income of a voluntarily underemployed parent. The 

definition of “gross income” does not, however, provide any exception to the earlier, 

explicit limitation on the inclusion of overtime earnings. See Wyo. Stat. Ann. § 20-2-

303(a)(ii). Consequently, the statute limits a court’s authority to impute potential overtime 

income to a consideration of “all overtime earnings derived in the preceding twenty-four 

(24) month period,” which “can reasonably be expected to continue on a consistent basis.” 

See id. The district court abused its discretion when it circumvented this express statutory 

limitation. Fink, 685 P.2d at 36. 

6 Father suggests that the statute’s 24-month period counts back from the date of trial, but neither the statute 

nor our precedent specify the date from which the court should count back under Wyo. Stat. Ann. § 20-2-

303(a)(ii). Even if we count back from the date Mother filed the divorce action, the result is the same.

Mother asked the court to base child support on Father’s 2013 and 2014 net income, which included

“overtime earnings [Father] derived” more than 24 months before Mother filed the action in July 2017. 

Wyo. Stat. Ann. § 20-2-303(a)(ii). 
16

[¶36] Because the court imposed no other deviation(s) from the presumptive child support

amount, we reverse the portion of the court’s order calculating child support and remand 

with instructions that the court order Father to pay the presumptive child support amount 

of $1,870.

IV. Attorneys’ Fees

[¶37] Mother requests that we award her costs and attorneys’ fees pursuant to W.R.A.P. 

10.05(b) on the basis that Father’s appeal lacks cogent argument and citation to pertinent 

legal authority. Rule 10.05(b) provides: “If the court certifies, whether in the opinion or 

upon motion, there was no reasonable cause for the appeal, a reasonable amount for 

attorneys’ fees and damages to the appellee shall be fixed by the appellate court and taxed 

as part of the costs in the case.” We have often recognized that such “sanctions are 

generally not available for challenges to discretionary rulings, unless ‘an appeal lacks 

cogent argument, there is an absence of pertinent legal authority to support the issues, or 

there is a failure to adequately cite to the record.’” Deede v. Deede, 2018 WY 92, ¶ 10, 

423 P.3d 940, 943 (Wyo. 2018) (quoting Carbaugh v. Nichols, 2014 WY 2, ¶ 23, 315 P.3d 

1175, 1180 (Wyo. 2014)). Because we reversed the district court’s child support award, 

we cannot certify that Father’s appeal lacked reasonable cause. Cf. id. ¶ 11, 423 P.3d at 

944 (reluctantly certifying that there was no reasonable cause for Mr. Deede’s appeal where 

his four-page brief cited two cases pertaining to the abuse of discretion standard of review 

but none pertaining to the substantive legal issue, his entire argument consisted of three 

sentences that failed to adequately explain his argument, and he cited facts that were not 

contained in the record). Mother therefore is not entitled to sanctions under W.R.A.P. 

10.05.

[¶38] Section 20-2-111, however, authorizes an award of attorneys’ fees when necessary 

“to carry on or defend” an action brought for divorce. Wyo. Stat. Ann. § 20-2-111. We 

have applied this provision to award costs and attorneys’ fees incurred in defending an 

appeal. See Jensen v. Milatzo-Jensen, 2014 WY 165, ¶ 25, 340 P.3d 276, 283 (Wyo. 2014). 

Mother necessarily incurred additional expense in having to defend against Father’s 

extensive, but largely baseless, challenges to the district court’s order on visitation and 

property division. The district court found, and Father did not contest, that Father could 

earn about four times more income than Mother, and that Mother left the marriage with a 

limited work history. Mother is now an hourly employee of the Town of Mountain View, 

earning approximately $14 per hour. For these reasons, we conclude that reimbursement 

of certain costs and attorneys’ fees is justified under Wyo. Stat. Ann. § 20-2-211. Id. 

CONCLUSION

[¶39] The district court did not abuse its discretion in ordering supervised visitation or 

dividing the marital property. We therefore affirm those portions of the court’s divorce 

decree, and upon receipt of a statement of related costs and attorneys’ fees will enter an 
17

order making an appropriate award to Mother under Wyo. Stat. Ann. § 20-2-111. The court

did abuse its discretion when it found Father was voluntarily underemployed and ordered 

that he pay $2,300 in child support instead of the presumptive child support amount of 

$1,870. We therefore reverse the portion of the court’s order calculating child support and 

remand with instructions that the court order Father to pay the presumptive child support 

amount of $1,870.