               IN THE SUPREME COURT, STATE OF WYOMING

                                         2014 WY 2

                                                          OCTOBER TERM, A.D. 2013

                                                                  January 6, 2014

KEVIN R. CARBAUGH,

Appellant
(Defendant),

v.
                                                     S-13-0089
NANCY B. NICHOLS, f/k/a NANCY B.
CARBAUGH,

Appellee
(Plaintiff).


                    Appeal from the District Court of Laramie County
                        The Honorable Peter G. Arnold, Judge

Representing Appellant:
      Dameione S. Cameron, Cameron Law Office, P.C., Cheyenne, Wyoming

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


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

*Justice Voigt retired effective January 3, 2014


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.
DAVIS, Justice.

[¶1] The district court modified the custody, visitation, and child support provisions of
the decree which divorced these parties. Appellant Kevin Carbaugh (Father) does not
challenge the modification, but claims that the district court abused its discretion when it
entered a written order which he contends differs from an oral ruling concerning his
obligation to reimburse Appellee Nancy Nichols (Mother) for medical and other expenses
of one of the parties’ children. We find no abuse of discretion and therefore affirm. We
also deny Mother’s request for sanctions under Wyoming Rule of Appellate Procedure
10.05.

                                                  ISSUES

[¶2] 1.       Did the district court abuse its discretion when it declined to determine the
amount Father owed Mother to reimburse her for expenses she had incurred for health
care of one of the parties’ children?

      2.     Is Mother entitled to an award of attorney fees and costs under Wyoming
Rule of Appellate Procedure 10.05?

                                                  FACTS

[¶3] The parties married in 1995 and divorced in 2005. The divorce decree awarded
them joint custody of their two children, J.C. and M.C. Each parent was allowed to have
the children fifty percent of the time, and child support was calculated on that basis.
Father was required to provide health insurance for the children, and the parties were
required to equally divide any remaining “health, medical, dental, orthodontic, eye care,
prescriptions and/or counseling expenses” not covered by insurance. See Wyo. Stat. Ann.
§ 20-2-401 (LexisNexis 2013).1 The district court awarded child support in accordance


1
    Wyoming Statute § 20-2-401 governs medical support in child support orders:

                  (a) In any action to establish or modify a child support obligation, the
                  court shall order either or both of the parents to provide medical support,
                  which may include dental, optical or other health care needs for their
                  dependent children. The court shall:

                          (i) Require in the support order:

                                  (A) That one (1) or both parents shall provide insurance
                          coverage for the children if insurance can be obtained at a
                          reasonable cost and the benefits under the insurance policy are
                          accessible to the children; and



                                                       1
with the applicable statutory guidelines. See Wyo. Stat. Ann. §§ 20-2-301 to -316
(LexisNexis 2013).

[¶4] Mother moved to modify the custody provisions of the decree in 2009, claiming
that the joint custody arrangement was not working and that there were other grounds for
modification. She also asked the court to modify the support provisions of the decree,
because if she was awarded primary custody and Father did not have the children fifty
percent of the time, his support obligation would increase.2 The designated record is
limited, but what we have available to us contains no indication that she or Father asked
the court to modify the provisions of the decree governing payment of medical expenses
incurred for the benefit of the children.

[¶5] When the matter went to hearing, Mother explained the problems that had led her
to seek a modification of the decree. M.C. suffers from diabetes and an eating disorder,
and she has had extensive treatment for both. Mother did not testify to the costs of
treatment except during the following exchange about how the treatment bills had been
paid:

                  [Mother’s Attorney]. While I’m thinking of it. The Center for
                  Change [a treatment facility in Utah], was that covered
                  entirely by insurance?



                                  (B) That both parents be liable to pay any medical
                          expenses not covered by insurance and any deductible amount
                          on the required insurance coverage as cash medical support; or

                                                           .   .   .

Wyo. Stat. Ann. § 20-2-401 (LexisNexis 2013).
2
    See § 20-2-304(c), which provides as follows:

                           When each parent keeps the children overnight for more than
                  forty percent (40%) of the year and both parents contribute substantially
                  to the expenses of the children in addition to the payment of child
                  support, a joint presumptive support obligation shall be determined by
                  use of the tables. After the joint presumptive child support obligation is
                  derived from column three of the tables, that amount shall be divided
                  between the parents in proportion to the net income of each. The
                  proportionate share of the total obligation of each parent shall then be
                  multiplied by the percentage of time the children spend with the other
                  parent to determine the theoretical support obligation owed to the other
                  parent. The parent owing the greater amount of child support shall pay
                  the difference between the two (2) amounts as the net child support
                  obligation.


                                                       2
             [Ms. Nichols]. No, it was not.

             Q.    How much out-of pocket did you spend toward
             medical bills for Center for Change?

             A.     Um, my family and I spent at least $15,000.

             Q.    Have you incurred significant medical expenses
             throughout this process?

             A.     Yes, I have.

             Q.     What have those expenses been?

             A.    Those I don’t have the details of off the top of my
             head.

             Q.     What is your monthly prescription cost for [MC]?

             A.    Those run anywhere from $150 up to about $300 a
             month.

             Q.     Is that covered by insurance?

             A.     That’s after insurance. That’s the insurance co-pay.

             Q.     So you’ve been bearing those costs yourself?

             A.     Yes.

             Q.     Would you like the Judge to consider that when he
             apportions the responsibility for the other expenses?

             A.     Yes, please.

[¶6] The record indicates that the reference to “other expenses” probably related to
attorney fees, a custody evaluation, and fees of a guardian ad litem incurred in the
modification proceedings. Neither of the parties challenged the original medical payment
requirements in the modification proceedings. The district judge commented on the
medical payment obligations under the decree:




                                              3
             THE COURT: . . . . Mr. Carbaugh, I think it’s appropriate for
             you to share in the uncovered medical expenses that have
             been incurred for the care of [M.C.].

                   So, Ms. Nichols, you will need to get together those
             statements. I assume there are hundreds of them.”

             MS. NICHOLS: (Nodded.)

                                           .   .   .

             THE COURT: . . . . Any other questions.

             [Father’s attorney]: I just have one, Your Honor. To get it
             right, the parties split [guardian ad litem fees], my client
             absorbs all of the [custody evaluator fees], and half of the
             $15,000 that she says she owes, is that right, for the treatment
             facility?

             THE COURT: That’s right.

[¶7] The parties submitted competing orders after the hearing, and the court entered a
written order modifying custody, visitation, and child support. See W.R.C.P. 58 (process
of entry of judgment or order). We are unable to determine from the record itself which
party submitted the order ultimately entered, although Mother’s brief represents that it
was prepared by Father’s attorney. The order awarded each parent primary custody of
one child, with Mother as M.C.’s primary custodian. The order stated in the last
paragraph that “[Father] shall reimburse [Mother] for one-half of the uncovered medical
costs for medical care for MC, in the amount of $______.” The district judge initialed
the stricken portion of the text. The party submitting the order obviously anticipated that
the judge would fill in the amount he concluded Father owed, but the judge declined to
do so, striking out that portion.

[¶8] The order modifying the decree also required Father to provide health, dental and
vision insurance on behalf of both of the minor children if it was reasonably affordable
through his employment or otherwise. It also provided that “[t]he parties shall split 50/50
any and all non-covered and deductible amounts, including prescriptions, dental, eye
care, orthodonture, counseling and all other health related needs of the child and expenses
not covered by insurance.” This provision is substantially similar to that of the divorce
decree.

[¶9]   This appeal was timely perfected.



                                               4
                                      DISCUSSION

[¶10] Father does not challenge any part of the order modifying custody and support
except that in which the court declined to determine the amount he owed Mother to
reimburse her for medical expenses. Father claims that the district court abused its
discretion in entering a written order which departs from its oral ruling because it does
not limit his liability for M.C.’s expenses to one half of the $15,000 mentioned in the
hearing.

[¶11] Father acknowledges that we have held that a ruling from the bench in a civil case
is not final when it is followed by a written order. Forbis v. Forbis, 2009 WY 41, ¶ 8,
203 P.3d 421, 423-24 (Wyo. 2009) (citing Madigan v. Maas, 2005 WY 91, ¶ 11, 117
P.3d 1194, 1197 (Wyo. 2005); Broadhead v. Broadhead, 737 P.2d 731, 733 (Wyo.
1987)). However, Father argues that Root v. Root, 2003 WY 36, ¶ 26, 65 P.3d 41, 49
(Wyo. 2003), requires that the order modifying custody be reversed and remanded to
conform with what he claims was the district court’s oral ruling. In Root, the district
court’s decision letter awarded the husband in a divorce case $25,000 for his share of the
value of a business. Id. The decree did not contain this award, probably through
inadvertence, and we remanded for correction of the decree. Id.

[¶12] Father claims that the testimony only demonstrated that medical expenses would
be around $15,000, but that he has recently been presented bills for over $100,000. He
contends that there was no evidence to support such a large figure, and that
reimbursement of that amount should be corrected because it shocks the conscience. He
construes the district court’s order to require him to pay whatever amounts Mother claims
he owes.

[¶13] Mother responds that the testimony quoted above described treatment by one
provider of several, and that the judge’s comments reflect only a requirement of the
existing decree. She argues that this is not a case in which the oral pronouncement did
not conform to the written order because the court did not rule that Father was
responsible for the bills of only one provider as he claims. She also points out that Father
can request a hearing if he believes that he should not be required to pay the bills Mother
submits to him.

[¶14] We ordinarily review modifications to custody, visitation, and child support for
“procedural error or a clear abuse of discretion.” Roemmich v. Roemmich, 2010 WY 115,
¶ 7, 238 P.3d 89, 92 (Wyo. 2010) (citing Inman v. Williams, 2009 WY 51, ¶ 9, 205 P.3d
185, 191 (Wyo. 2009)). In this case, we are asked to determine whether the district court
entered an improper order in light of what is claimed to be a prior binding oral ruling.
We will review under the same standard.




                                              5
[¶15] Medical support expenses were not an issue at the modification hearing, and the
parties submitted no evidence as to the total amount or reasonableness of the expenses
Mother might have incurred. The testimony related to custody, and specifically to the
manner in which Mother had dealt with M.C.’s problems and the expense she had
incurred in doing so. This testimony showed that she had managed M.C.’s care and had
borne the expense herself, which correlated to the factors courts are required to consider
when custody is disputed. See Wyo. Stat. Ann. § 20-2-201 (LexisNexis 2013) (the
factors include ability to provide adequate care, competency of the parent, and
willingness to accept all responsibilities of parenting).

[¶16] Although the decree does not explicitly say so, a parent is only required to
reimburse the other divorced parent for the reasonable and necessary health care (in this
case, including medical, dental, orthodontic and eye care, as well as prescriptions and
counseling expenses) provided to a child:

                    A parent from whom financial contribution is sought
             nevertheless retains the right to challenge the reasonableness
             of the medical expenses. . . .

                    Some of the relevant questions to be addressed when
             considering the reasonableness of a reimbursement request
             are: (1) was the treatment medically necessary; (2) was the
             medical treatment in response to an unforeseen emergency
             requiring immediate action; (3) did the treatment involve
             elective or cosmetic medical services, and if so, was it in the
             best interest of the child involved to undergo such treatment;
             and (4) in cases of elective or cosmetic medical treatment,
             was the decision economically sound, given the parties’
             financial resources. . . . These cases are, by necessity,
             factually sensitive.

Gotlib v. Gotlib, 944 A.2d 654, 661 (N.J. Super. Ct. App. Div. 2008); see also Laura W.
Morgan, Child Support Guidelines § 7.01[B] (2d ed. 2013) (“Case law . . . has generally
provided that medical expenses include: treatment provided by a medical or dental
doctor, so long as necessary and reasonable.”) (citations omitted); 3 Arnold H. Rutkin,
Family Law & Practice § 33.05[7] (2012) (“As with child care costs, [medical]
expenditures are, perhaps, best determined on a case-by-case basis.”) (citations omitted).

[¶17] The amount, reasonableness, and necessity of the medical expenses for M.C.’s
care were not issues raised by the pleadings in the modification proceedings, and the
district judge did no more than point out that expenses not covered by insurance were to
be divided evenly under the existing decree. He told Mother to “get together those
statements.” The testimony indicated that Mother did not know exactly how much she


                                             6
and her family had paid at that point. The divorce decree required Father to pay his share
of any uncovered costs within thirty days after receiving notice of expenses, and so he
had no obligation to pay at the time of the hearing, as Mother had not gathered the bills or
presented them to him.

[¶18] The district court obviously recognized that reimbursement for medical expenses
was not an issue raised by the pleadings, and that it had heard no evidence which would
allow it to determine the amount, reasonableness, or necessity of the expenses. It
therefore properly declined to make an award.

[¶19] Although there was limited testimony about the approximate amounts Mother and
her family had paid for M.C.’s care at one facility, Father cannot bootstrap these
indefinite and probably advisory remarks into a ruling limiting his obligations under the
decree in force when they were incurred. There is no reason to believe that the court
inadvertently made a mistake like that in Root, as the judge here modified the proposed
decree to reflect his ruling and initialed the change.

[¶20] Father’s brief informs us that he has since the hearing received bills in a much
larger amount than the amount referred to at the hearing. Nothing in the order or the
record before us suggests that the district judge intended to present Mother with a blank
check for any expense she might claim. Father may file an appropriate pleading asking
the district court to determine whether the claimed expenses are reasonable and
necessary, and whether he is in fact obligated to pay any or all of them.

[¶21] If he does not file such a motion or pay his share of the expenses, Mother may
choose to file a motion asking the district court for an order requiring him to show cause
as to why he should not be held in contempt for failing to reimburse her. See generally
W.R.Cr.P. 42.1 (civil contempt proceedings and remedies). He may contest the
reasonableness and necessity of the underlying expenses and/or defend against the
contempt proceeding based on inability to pay. See W.R.Cr.P. 42.1(b) (after notice and a
hearing, the court may find a person in civil contempt for their refusal to “perform an act
that is yet within the person’s power to perform”); Turner v. Rogers, 131 S. Ct. 2507,
2516, 180 L. Ed. 2d 452 (2011) (“A court may not impose punishment in a civil contempt
proceeding when it is clearly established that the alleged contemnor is unable to comply
with the terms of the order.” (quoting Hicks v. Feiock, 485 U.S. 624, 638 n.9, 108 S. Ct.
1423, 99 L. Ed. 2d 721 (1988))) (internal quotation marks omitted); Morehead v.
Morehead, 811 P.2d 721, 724 (Wyo. 1991) (divorced father could defend against
contempt proceeding for failure to provide children’s insurance “on the basis of
reasonable efforts to obtain and to maintain insurance”).

[¶22] The district judge acted properly and within his discretion when he declined to
determine the amount Father owed Mother for M.C.’s care.



                                              7
Reasonable Cause for Appeal

[¶23] Mother asks us to award her costs and attorney fees under Wyoming Rule of
Appellate Procedure 10.05. Rule 10.05 provides that “[i]f the court certifies 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.” W.R.A.P. 10.05. Rule 10.05 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.” Welch v. Welch, 2003 WY 168, ¶ 13, 81 P.3d 937, 940 (Wyo. 2003)
(summarizing the case law regarding appellate sanctions) (citations omitted).

[¶24] While we do not find Father’s argument persuasive, we cannot certify that he had
no reasonable cause for his appeal based on the record and the authority he cited. We
therefore deny Mother’s request for Rule 10.05 sanctions.

                                      CONCLUSION

[¶25] The district court properly declined to determine what amount, if any, Father owed
Mother for medical expenses, and it did not therefore abuse its discretion in declining to
enter an order for a specific amount. Accordingly, we affirm, and we also deny Mother’s
motion for attorney fees and costs under W.R.A.P. 10.05.




                                                8
