Macy v. Macy

ROONEY, Justice,

concurring in part and dissenting in part, with whom THOMAS, Chief Justice, joins.

I agree with that said in Part I of the majority opinion, but I do not agree with the result reached in Part II thereof.

In Part II, the majority opinion recognizes the impropriety of plaintiff’s oral motion for modification, but, instead of affirming the denial thereof, the matter is reversed for the purpose of correcting the error made by plaintiff and not for the correction of any error made by the trial court. I believe this is a new and dangerous method of appellate disposition of cases. The finding against plaintiff by the trial court was proper on this basis, regardless of the reason given by the trial court for such finding. If there exists any legally valid ground appearing in the record supporting the judgment, it should be affirmed. Valentine v. Ormsbee Exploration Corporation, Wyo., 665 P.2d 452 (1983); Agar v. Kysar, Wyo., 628 P.2d 1350 (1981).

Of course, either party may petition for modification of the child support provisions of a divorce decree premised on a change in circumstances. Plaintiff may do so in this instance. If he shows a financial inability to make the ordered contribution to the welfare of his children, the court could grant his petition. Likewise, defendant may file a like petition. If she can show that the failure of her business or other financial difficulties on her side make it necessary for an increase of child support by plaintiff for the welfare of the children, the court could grant her petition.

Aside from the propriety of affirming the trial court on the basis of the use of improper procedure by plaintiff, there is no indication that the trial court did not properly consider the present circumstances of the parties in relation to the amount of child support due when it denied modification thereof. Certainly plaintiff should not be able to take it upon himself — without court sanction — to stop paying child support through tfhe clerk of the district court *783as ordered. The judgment for arrearages in child support was proper.

Although § 20-2-116, W.S.1977, permits modification of a divorce decree with reference to alimony and child support payments, it does not do so with reference to a property settlement. See Paul v. Paul, Wyo., 616 P.2d 707 (1980); Salmeri v. Sal-meri, Wyo., 554 P.2d 1244 (1976). That property (including the value thereof in relation to the debts assumed) involved in the property distribution under the divorce decree and which subsequently became involved in defendant’s bankruptcy should not be considered “weighed,” “balanced,” or “setoff” in the decision relative to proper child support. To do so would be doing indirectly that which Part I of the majority opinion says cannot be done directly, i.e.:

“* * * Plaintiff was named as a creditor in the bankruptcy proceeding, and whether the debt is determined to be for those debts listed in the divorce decree or defendant’s debt to plaintiff because he had to pay them is immaterial; defendant is discharged in any event for debts arising prior to September 12, 1984, the date of the bankruptcy order entitled Discharge of Debtor.
⅜ * * * * *
“Plaintiff is thus specifically enjoined from claiming any offset. * * *
“* * * [Pjlaintiff must make no effort or do no act to enforce in any way that part of the amended order granting him a judgment for debts of defendant, as listed in the divorce decree, which have been discharged. * * * The district court judgment in his favor is not only void but plaintiff is enjoined from trying in any fashion to offset the discharged debts against defendant.
* * * * * *
“* * * [W]e cannot conceive anything in the nature of alimony or child support with respect to the division of property and debts * * *.” (Emphasis added.) 714 P.2d at 779-781.

I would reverse Case No. 85-58 (as does the majority opinion in Part I thereof), and I would affirm Case No. 85-59 (contrary to that done in the majority opinion in Part II thereof).