IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 161

 OCTOBER TERM, A.D. 2014

December 15, 2014

SUSANNE S. LEVENE,

Appellant

(Plaintiff),

v.

DANIEL ELLIS LEVENE,

Appellee

(Defendant).

 S-14-0096

Appeal from the District Court of Albany County

The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:

Pro se.

Representing Appellee:

Anthony F. Ross, Ross, Ross & Santini, LLC, Cheyenne, Wyoming.

Guardian Ad Litem:

Stacy L. Rostad, Nicholas & Tangeman, LLC, Laramie, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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

BURKE, Chief Justice.

[¶1] Appellant, Susanne Levene (Mother), acting pro se, challenges an order denying 

her motion to modify child support. She contends the district court erred in determining

she was voluntarily unemployed. We affirm.

ISSUE

[¶2] Mother presents four issues, each of which relates to the district court’s 

determination that she was voluntarily unemployed from January to November, 2013. 

Accordingly, we distill Mother’s issues into a single issue statement:

Whether the district court erred in determining that Mother

was “voluntarily unemployed” for purposes of Wyo. Stat. 

Ann. §§ 20-2-303(a)(ii) and 20-2-307(b)(xi) from January to 

November, 2013.

FACTS

[¶3] The parties were married in 1996, and the marriage produced three children.

Mother is a general surgeon and Appellee, Daniel Levene (Father), is an orthopedic 

surgeon practicing in Laramie, where he has resided at all times during this litigation.

Mother filed a complaint for divorce in 2003, and the parties entered into a Property 

Settlement and Child Custody Agreement in January, 2004. That agreement 

contemplated that Mother would have primary custody of the children. Before the 

divorce decree was signed, however, Mother drove drunk with the children in her car and 

was involved in an automobile accident. She ultimately pled guilty to driving while 

under the influence of alcohol.

[¶4] As a result of the accident and Mother’s drinking problem, Father and the 

children’s guardian ad litem filed a joint petition to modify custody. The parties 

subsequently entered into a Stipulated Order for Modification of Custody, which 

incorporated the following provision concerning Mother’s alcohol issues:

The above custody arrangement is conditioned upon (a) 

Mother maintaining sobriety without any significant relapses 

of use, and (b) Mother continuing phase II of substance and 

alcohol counseling or treatment so long as deemed necessary 

by Mother’s present counselor and treatment substance abuse 

providers.

Mother relapsed shortly after entry of the stipulated order and in August, 2004, Father 

petitioned the district court for a modification of custody. The court granted Father’s 
2

petition and awarded him primary residential custody of the children. In granting 

Father’s petition, the court noted that Mother had refused to comply with urinalysis 

testing and admitted that she had lied to the court about her compliance. With respect to 

Mother’s child support obligation, the court noted that Mother was unemployed but was 

pursuing employment as a physician. As a result, the court attributed a minimum wage 

salary to Mother and ordered her to pay child support in the amount of $147.81 per 

month.

[¶5] On October 2, 2007, Mother filed a petition to modify the district court’s custody 

order. Mother asserted that she was fit to have custody of the parties’ children and that 

she had “remained sober and has completely abstained from the use of alcohol.” Mother 

noted that she had been employed full time at a general surgical practice in Rugby, North 

Dakota since June, 2006. Three days before that petition was filed, however, Mother was 

again arrested for driving while under the influence of alcohol while the children were 

riding as passengers in her vehicle. As a result of this incident, the district court ordered

that Mother’s visitation with the children be supervised. 

[¶6] In April, 2008, Father filed a petition for adjustment of child support. At that 

time, Mother was earning $260,000.00 per year at the surgical practice in North Dakota.

On August 29, the court entered an order finding that Mother’s presumptive child support 

obligation was $1,259.00 per month. However, the court ordered Mother to pay child 

support in the amount of $259.00 per month, a $1,000 downward deviation from the 

presumptive child support amount. The court noted that the deviation was justified by 

the costs incurred by Mother for monthly visitation.

[¶7] In 2009, the district court entered a Stipulated Custody and Visitation Order after 

Mother filed a Motion to Allow Unsupervised Visitation. In that order, the parties agreed 

that Mother would be allowed to exercise unsupervised visitation on the conditions that 

she remain gainfully employed, maintain sobriety, and continue with appropriate 

alcoholism treatment and counseling. The order also required that “Neither parent shall 

ask questions of or engage in conversations with the children which invite a child to 

choose sides or provide information that reflects negatively on the other parent,” and that 

neither party “shall video tape or audio record any of the visitation exchanges between 

the children and either parent, a nanny, sitter or the children’s grandparents.”

[¶8] Mother left her employment in North Dakota in May, 2010 to take a job as a 

general surgeon in Lamar, Colorado, where she earned a yearly salary of $300,000.00. In 

May, 2011, the district court entered a Stipulated Order Modifying Child Support. The 

court ordered Mother to pay the presumptive child support obligation of $1,407.10 per 

month. Additionally, in March, 2011, Father requested that the court find Mother in 

contempt for violating the Stipulated Custody and Visitation Order entered in 2009. The 

court granted Father’s motion after determining that Mother had violated the provision 

prohibiting the parties from inviting the children to choose or providing information that 
3

reflects negatively on the other parent.

[¶9] Mother left her job in Colorado in the summer of 2012 and remained unemployed 

until November, 2012, when she took a job as a surgeon in Lewiston, Idaho, earning a 

salary of $350,000.00 per year. However, Mother left that position after only two months 

as a result of job dissatisfaction and a conflict with another surgeon. After voluntarily 

leaving her position in Idaho, Mother apparently intended to start her own surgical 

practice with another doctor in Casper, Wyoming, but ultimately chose not to pursue that 

opportunity. In the fall of 2013, Mother secured employment as the Medical Director at 

the Wyoming State Penitentiary in Rawlins, Wyoming, at a salary of $249,000.00 per 

year. She also accepted employment at Memorial Hospital in Carbon County.

[¶10] The present matter began in January, 2013, when Mother filed a petition to modify 

child support. Mother asserted that an adjustment of child support was appropriate 

because she was, at that time, unemployed. In response, Father filed a motion for an

order to show cause as to why Mother should not be held in contempt for failing to pay 

child support. The district court conducted hearings on the parties’ motions on January 

17 and January 31, 2014. Following the hearings, the district court entered an Order of 

Contempt and Order Denying Child Support Modification. The court determined 

Mother’s monthly net income to be $10,980.00 and her presumptive child support 

obligation to be $1,393.00 per month. The court concluded that a modification of child 

support was not warranted because $1,393.00 did not represent a 20% change from 

Mother’s existing child support obligation, as required under Wyo. Stat. Ann. § 20-2-311. 

The court further found that Mother was in arrears on her child support obligation in the 

amount of $27,265.38 and ordered her to pay $1,000.00 per month toward the arrears.

[¶11] Additionally, in response to Mother’s claim that her periods of unemployment 

warranted a modification of child support during those periods, the district court 

determined that Mother was not entitled to modification due to the fact that she was 

voluntarily unemployed. The court stated:

Those periods of unemployment were caused by Plaintiff’s 

decisions to terminate her well-paying medical positions, and 

the reasons she gives are entirely incredible. It is apparent, 

rather, that Plaintiff generally departed from employment in 

Colorado and Idaho due to her unilateral inability to form 

working relationships with her colleagues. This Court will 

not modify Plaintiff’s support obligations, or relieve her of 

them, based on her personality issues.

Finally, the court held Mother in contempt of court for tape-recording phone 

conversations between her children and Father, urging the children to take sides on issues 

relating to custody and visitation, and failing to pay child support. Mother timely 
4

appealed the district court’s order. She challenges only the district court’s refusal to 

modify child support during the period, from January to November, 2013, in which she 

was unemployed.

STANDARD OF REVIEW

[¶12] We review the district court’s decision on child support for abuse of discretion:

There are few rules more firmly established in our 

jurisprudence than the proposition that disposition of 

marital property, calculation of income for child 

support purposes, and the granting of alimony are 

committed to the sound discretion of the district court.

Johnson v. Johnson, 11 P.3d 948, 950 (Wyo. 2000). 

Judicial discretion is a composite of many things, 

among which are conclusions drawn from objective 

criteria; it means exercising sound judgment with 

regard to what is right under the circumstances and 

without doing so arbitrarily or capriciously. Id.; 

Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). We 

must ask ourselves whether the trial court could 

reasonably conclude as it did and whether any facet of 

its ruling was arbitrary or capricious. Johnson, 11 

P.3d at 950. In accomplishing our review, we consider 

only the evidence in favor of the successful party, 

ignore the evidence of the unsuccessful party, and 

grant to the successful party every reasonable 

inference that can be drawn from the record. Id.

Opitz v. Opitz, 2007 WY 207, ¶ 7, 173 P.3d 405, 407-408 (Wyo. 2007) (quoting Belless 

v. Belless, 2001 WY 41, ¶ 6, 21 P.3d 749, 750-751 (Wyo. 2001)).

DISCUSSION

[¶13] Under Wyo. Stat. Ann. § 20-2-303(a)(ii), “income” for purposes of determining 

child support is defined to include “potential income of parents who are voluntarily 

unemployed or underemployed.” Wyo. Stat. Ann. § 20-2-307(b), in turn, identifies 

factors that may be used to determine a parent’s potential earning capacity:

(b) A court may deviate from the presumptive child 

support established by W.S. 20-2-304 upon a specific finding 

that the application of the presumptive child support would be 

unjust or inappropriate in that particular case. In any case 
5

where the court has deviated from the presumptive child 

support, the reasons therefor shall be specifically set forth 

fully in the order or decree. In determining whether to 

deviate from the presumptive child support established by 

W.S. 20-2-304, the court shall consider the following factors:

. . .

(xi) Whether either parent is voluntarily 

unemployed or underemployed. In such case the child 

support shall be computed based upon the potential 

earning capacity (imputed income) of the unemployed 

or underemployed parent. In making that 

determination the court shall consider: 

(A) Prior employment experience and history;

(B) Educational level and whether additional 

education would make the parent more selfsufficient or significantly increase the parent’s 

income;

(C) The presence of children of the marriage in 

the parent’s home and its impact on the earnings 

of that parent;

(D) Availability of employment for which the 

parent is qualified;

(E) Prevailing wage rates in the local area;

(F) Special skills or training; and

(G) Whether the parent is realistically able to 

earn imputed income.

Wyo. Stat. Ann. § 20-2-307(b) (LexisNexis 2013).

[¶14] Mother contends the district court erred in finding that she was voluntarily 

unemployed from January to November, 2013. She claims the court’s conclusion was 

erroneous because there was no evidence to indicate that employment opportunities were 

available in Laramie and no evidence that her earnings as a surgeon in Laramie would be 

comparable to her historical earnings in Colorado and Idaho. 
6

[¶15] Mother relies on our decision in Durham v. Durham, 2003 WY 95, 74 P.3d 1230

(Wyo. 2003) to support her position. However, the facts in Durham are distinguishable

from the present case. In Durham, the parties were married in 1992 and lived in Virginia. 

Id., ¶ 3, 74 P.3d at 1232. At the time of the parties’ marriage, the mother was earning a 

salary of $35,000. After the marriage, she became a homemaker and worked part-time 

for the parties’ church, earning between $10,000 and $12,000 annually. Id. The parties 

separated in 1999, and the mother moved with the children to Gillette, Wyoming, where 

she taught piano and music lessons, earning approximately $7,000. Id., ¶ 4, 74 P.3d at 

1232. In the ensuing divorce proceedings, both parties proposed that, for purposes of 

calculating child support, the district court impute income to the mother based on the 

minimum wage. Id., ¶ 13, 74 P.3d at 1234. The court, however, found that the mother 

was “intentionally underemployed” and imputed annual gross income to her at $35,000 

per year Id., ¶ 5, 74 P.3d at 1232-1233. 

[¶16] On appeal, we held that the district court abused its discretion by failing to 

consider evidence regarding availability of employment and the prevailing wage rates for 

such employment. Id., ¶ 12, 74 P.3d at 1234. We noted that we had previously required 

evidentiary support for imputation of income at a certain rate. Id., ¶ 11, 74 P.3d at 1234 

(citing In re Paternity of IC, 971 P.2d 603, 608 (Wyo. 1999)). Ultimately, we found that 

the record contained no evidence of the mother’s ability to earn the income imputed to 

her:

We agree with mother that the district court’s decision 

is not supported by the record. While the record does include 

evidence of mother’s employment history and education 

level, it does not include any evidence regarding availability 

of employment and prevailing wage rates in the local area. 

Thus, while it is true that mother has a degree in business 

administration and that she earned $35,000 in Virginia in 

1992, the district court record includes nothing to support the 

proposition that mother is realistically able to earn, in the 

Gillette area, the income imputed to her. See Connell v. 

Connell, 718 So. 2d 842 (Fla.App. 2 Dist. 1998).

Durham, ¶ 12, 74 P.3d at 1234. Accordingly, we reversed the district court’s decision 

imputing income to the mother at the rate of $35,000 per year. Id., ¶ 13, 74 P.3d at 1234.

[¶17] In contrast to Durham, the record in the present case contains ample evidence that 

Mother was able to earn the income imputed to her from January to November, 2013. 
7

Mother has active licenses to practice medicine in North Dakota, Idaho, Colorado, 

California, and Wyoming.1 From 2006 to 2013, Mother was employed as a surgeon in

North Dakota, Colorado, and Idaho, earning between $260,000.00 and $350,000.00 per 

year. Mother left each of those positions voluntarily. During the period in which Mother 

claims she was involuntarily unemployed, she chose not to pursue an opportunity to 

practice in Casper, Wyoming. Mother is currently living in Laramie and is employed as a 

surgeon in Rawlins, earning $249,000.00 per year. The record does not contain specific 

evidence of Mother’s potential earning capacity in Laramie. However, for the last ten 

years Mother has exercised her visitation with the children in Laramie while living and 

working in four different states. Although Mother’s desire to be closer to her children is 

commendable, she does not claim that her employment away from Laramie has prevented 

her from exercising her visitation with the children. Accordingly, based on the facts of 

this case, we find no abuse of discretion in the district court’s decision.

[¶18] Additionally, the district court found that Mother was not a credible witness. We 

have stated that “issues of credibility and the weight to be given to testimony are matters 

to be resolved by the trier of fact, not an appellate court. Thus, we may not substitute our 

judgment for that of a trial court with respect to issues concerning credibility.” JKS v. 

AHF (In re ARF), 2013 WY 97, ¶ 16, 307 P.3d 852, 856 (Wyo. 2013) (quoting Yoeuth v. 

State, 2009 WY 61, ¶ 31, 206 P.3d 1278, 1286 (Wyo. 2009)). The district court found 

that Mother had testified falsely to the court on three separate occasions during the 

parties’ post-divorce litigation. Mother does not challenge those findings. And indeed, 

the record supports the fact that Mother failed to be candid with the court on several 

occasions. In 2004, when the parties sought to address Mother’s substance abuse issues, 

she admitted she had lied to the court about her compliance with urinalysis testing. In 

2011, Mother admitted that she had been untruthful in deposition testimony when she 

denied engaging the children in conversations that invited the children to choose sides in 

the parties’ custody dispute. Mother was also untruthful at the January 31, 2014 hearing 

on her petition to modify child support when she denied tape-recording telephone 

conversations between the children and their counselor in 2010. The evidence supports

the district court’s finding that Mother was not a credible witness, and the court could 

properly discount Mother’s testimony concerning her inability to find employment from 

January to November, 2013. We find no abuse of discretion in the district court’s 

conclusion that Mother was voluntarily unemployed during this period.

[¶19] Finally, Mother takes issue with the district court’s finding that her periods of 

unemployment were due to “her unilateral inability to form working relationships with 

her colleagues.” She contends that the district court deprived her of “the opportunity to 

address that issue with further evidence, including testimony from other employees at the 

 

1 As a result of her DUI’s, Mother has probationary medical licenses in Colorado and California.
8

hospital in Lewiston. Accordingly, the finding deprived her of the opportunity to 

challenge the allegations levied against her, and hence of her right to due process.”

Again, however, the record supports the district court’s findings. Mother left her 

employment in Lamar, Colorado because she had a conflict with the chief of the medical 

staff. Mother also left her employment in Lewiston, Idaho due to a conflict with another 

surgeon. Ultimately, however, the precise circumstances surrounding Mother’s conflicts 

with her colleagues in Idaho and Colorado are not relevant to a determination as to 

whether she was able to find employment. The fact remains that Mother left her 

employment voluntarily, a finding she does not dispute. The district court’s 

determination that Mother’s personality issues prevented her from continuing her 

employment did not deprive Mother of her right to due process.

[¶20] Affirmed.