Lemus v. Martinez

486 P.3d 1000

Arsenio LEMUS, Appellant (Petitioner),

v.Merissa MARTINEZ, Appellee (Respondent).

S-20-0161

Supreme Court of Wyoming.

May 11, 2021

Representing Appellant: Donna D. Domonkos, Domonkos Law Office, LLC, Cheyenne, Wyoming.

Representing Appellee: Sarah J. Manwarren, Relevant Law, Lynchburg, Virginia.

Guardian ad Litem: Jennifer P. Hanft, Laramie, Wyoming.

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

KAUTZ, Justice.

[¶1] These parties are before us for the second time. After the district court granted primary physical custody of the parties’ children to Merissa Martinez (Mother) and ordered Arsenio Lemus (Father) to pay child support, Father filed a petition to modify custody and support. The district court denied the petition and Father appealed. He argues the district court violated his due process rights when it denied his request that the guardian ad litem (GAL) testify about Father's accusation of bias. Father also claims the court abused its discretion by finding insufficient evidence to support a deduction for mortgage interest expense when calculating income for purposes of child support. Finding no due process violation or abuse of discretion, we affirm. We deny Mother's request for attorney fees and costs under Rule 10.05 of the Wyoming Rules of Appellate Procedure (W.R.A.P.).

ISSUES

[¶2] Three issues are before us:

1. Did the district court violate Father's due process rights by denying his request to call the GAL to testify about alleged bias at the hearing on his motion to remove the GAL?

2. Did the district court abuse its discretion when it determined Father had not adequately proven mortgage interest expense to justify a deduction when calculating his income for child support?

3. Is Mother entitled to her attorney fees and costs under W.R.A.P. 10.05 ?

FACTS

[¶3] Because the procedural history of this case is convoluted, we recite only those facts relevant to this appeal.

[¶4] Mother and Father never married but have two children together, a son (JAL) and a daughter (AKL) born in 2006 and 2011, respectively. In November 2016, after Mother and Father's relationship ended, Father filed a petition to establish custody of the children, visitation, and child support. Upon Father's motion, the district court appointed a GAL for the children. After a bench trial, the district court awarded Mother primary physical custody of the children, subject to Father's visitation, and ordered Father to pay Mother $2,588 in monthly child support. Father appealed, arguing the district court abused its discretion in calculating child support and violated his due process rights by imposing time limits at trial. See Lemus v. Martinez (Lemus I) , 2019 WY 52, 441 P.3d 831 (Wyo. 2019).

[¶5] While his appeal was pending and only two months after the district court entered its custody and support order, Father filed a petition to modify custody and support. He alleged a material change in circumstances had arisen since the court's previous custody and support order, namely, AKL had become stranded on a boat while at Seminoe Reservoir and had to be rescued via helicopter ("boating incident"). Father claimed Mother intentionally provided false information to the search and rescue team to conceal AKL's involvement in the incident and failed to inform him of it.

[¶6] Mother responded to the petition, admitting the boating incident had occurred and she had not immediately notified Father. However, she claimed the boating incident resulted from a sudden change in the weather; AKL was never in danger because she was stranded with adult family members; and Father learned of the boating incident a few days after it occurred. She denied providing false information to the search and rescue team as the information had been provided to the team by her adult cousin, who was with AKL at the time she was rescued.

[¶7] In a separate response, the GAL (who also served as the GAL in the original custody and support proceedings) claimed Father had not adequately pled a material change in circumstances justifying modification or that a change in custody was in the children's best interests. She requested a $5,000 retainer to investigate the boating incident, explaining:

Should this matter go to hearing, GAL will need the funds to retain expert testimony from a career firefighter/paramedic/rescue supervisor to present evidence that, given the dynamic weather in Carbon County, Wyoming, [Mother]’s and [Mother]’s friends/family's responses to the boating incident ... [were] completely appropriate .

(Emphasis added).

[¶8] Soon after receiving the GAL's response to his petition, Father filed a motion requesting her removal and the appointment of a new GAL because the GAL was biased against him. In support of his motion, he pointed to the GAL's request for a retainer "not so that she can investigate the events in an unbiased and objective way to determine whether there has been a ... material change in circumstances that warrants a modification in the best interests of the children ... but so she can prove that [Mother] acted appropriately[.]" Father also maintained he had concerns at the time of her appointment that the GAL may lack objectivity because she shares an office with his ex-wife's best friend.¹ In an affidavit attached to his motion, Father asserted that soon after her appointment, the GAL met with him and told him "she knew all about [him] and that [his] reputation proceeds [him]," which he took to mean she had a negative impression of him. He also expressed concern over the GAL's actions during Mother's deposition, claiming, among other things, the GAL had defended the deposition by objecting to questions posed to Mother and passed a note to Mother's attorney stating, "we might need to end this deposition and seek a protective order." Father later supplemented his motion to remove the GAL with an allegation that after her appointment, the GAL sought to purchase property from Father and he refused to sell it to her. According to Father, the GAL told him there was no conflict. Father claimed he "did not want to displease the GAL by not selling the property to her, but [he] also did not want to agree to sell the property to her and make it seem like [he] was bribing [her] for a good outcome [in the custody litigation]."

[¶9] The district court held a hearing on Father's motion to remove the GAL. At the hearing, Father testified to his belief the GAL was biased against him. His testimony mirrored the allegations in his motion and the supplement to the motion. He also asked the district court for permission to call the GAL as a witness. The district court denied the request. Father's attorney objected and provided an offer of proof:

[FATHER'S COUNSEL]: By way of an offer of proof, I would submit to this Court that how a [GAL] feels about this particular client is important and relevant. If permitted to testify, I believe the evidence would show that this [GAL] has described [Father] as a piece of S.

****

THE COURT: So your offer is that he has heard secondhand ... that he's been called a name by the GAL. So it would be hearsay anyway?

[FATHER'S COUNSEL]: The offer of proof would be that if the [GAL] was permitted to testify, I would lay foundation with respect to e-mails exchanged by the [GAL and Father].

THE COURT: So in an e-mail she called him a name?

[FATHER'S COUNSEL]: In an e-mail she defended the name that she called him, yes.

THE COURT: That's your offer of proof. The testimony, the back and forth about such a thing would be contrary to the interests of the children, and it would disqualify, in almost every case every time something like this arises, a sitting GAL. Here, even more dangerous because they've come to the conclusion once, and as you've pointed out with your client, he doesn't like the conclusion the GAL came up with.

He didn't appeal on that ground, but he did disagree with it; still does disagree with it.

So I have to be extraordinarily cautious. I do not find the circumstances or the offer, such that it justifies testimony from the GAL.

[¶10] The district court denied Father's motion to remove the GAL, finding "[o]ther than a few examples of deposition behavior, and the result the GAL supported, this evidence does not establish inappropriate conduct or bias relating to the decision-making process." It decided a change of GAL "at this juncture is contrary to the interests of the children [and] would result in substantial additional costs to the parties."

[¶11] We issued Lemus I on May 17, 2019. Relevant here, we decided the district court abused its discretion by ordering child support without obtaining sufficient information about Father's income, using conflicting evidence to arrive at his monthly income, and not determining whether Father's deductions for business expenses were appropriate under the statutory definition of income. Lemus I , ¶ 33, 441 P.3d at 839. We noted the GAL had reported, and Father's testimony had confirmed, he had at least three businesses, yet the record contained no documentation of Father's income from two of those businesses. Id . We remanded to the district court for additional proceedings to determine Father's income. Id . We "reiterate[d] that Father [would] have the burden of proving he is entitled to deductions for reasonable unreimbursed legitimate business expenses." Id . (citing Bagley v. Bagley , 2013 WY 126, ¶ 18, 311 P.3d 141, 146-47 (Wyo. 2013) ).

[¶12] On remand, the parties filed their confidential financial affidavits (CFA). Father filed a total of three CFAs, each reporting a different net monthly income from three businesses—Laramie Valley Contracting, Arsenio Lemus Holdings, LLC, and Opportunity Knocks, LCC. The income reported for the latter two businesses included rental income from various properties. In his first CFA, Father subtracted unreimbursed business expenses in various amounts in calculating his income. He failed, however, to provide his tax returns or any...