Summary 2005 WY 164

Summary of Decision issued December 28, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Marshall, Jr. v. State

Citation: 2005 WY 164

Docket Number: 04-156

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing Appellant (Defendant): Tonya A. Morse, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Senior Assistant Attorney General. Argument by Ms. Morgan.

Date of Decision: December 28, 2005

Issues: Whether the prosecution’s solicitation of testimony as to the guilty pleas of the co-conspirators or his use of the guilty pleas in argument was plain error that effectively denied Appellant his right to a trial on the merits. Whether judicial bias deprived the Appellant of his constitutional right to a fair trial. Whether ineffective assistance of counsel denied Appellant his constitutional right to a fair trial. Whether prosecutorial misconduct denied Appellant his constitutional right to a fair trial.

Holdings: At trial, Appellant waived the issue of the testimony regarding witnesses’ guilty pleas when he elicited information concerning plea agreements with the State during cross-examination. The Court therefore did not address the issue further.
Appellant’s judicial bias argument was not supported factually or legally. The Court’s review of the record revealed no evidence that the trial judge was biased against Appellant. The Court found no merit in this claim.
The Court reviews claims of ineffective counsel in light of all the circumstances to determine whether trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. The Court agreed with the trial court’s decision to exclude expert testimony based on the expert’s lack of qualifications. The Court noted that Appellant did not identify with specificity the comments upon which counsel was remiss in not objecting and he failed to provide any legal analysis supporting his ineffectiveness claim.
Appellant’s assertions regarding prosecutorial misconduct required him to demonstrate plain error. The Court reviewed the statements of the prosecutor and determined they were a legitimate argument as to what inferences the jury should or should not draw from the evidence produced at trial, and what evidence and other factors the jury should weigh, in evaluating the credibility of the witnesses. Also, Appellant failed to present a cogent argument with citation to pertinent legal authority explaining what rule of law the challenged comments violated in a clear and obvious way. Nor did he provide any analysis as to how he was materially prejudiced by those comments.

The district court's judgment is affirmed.

J. Golden delivered the opinion for the court.

Link to the case: http://tinyurl.com/9v6ky .

Summary 2005 WY 163

Summary of Decision issued December 22, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Meyers v. State

Citation: 2005 WY 163

Docket Number: 04-223

Appeal from the District Court of Carbon County, Honorable Kenneth Stebner, Judge

Representing Appellant (Defendant): Ken Koski, Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia Tibbets, Senior Assistant Attorney General; Matthew D. Obrecht, Student Intern.

Date of Decision: December 22, 2005

Issues: Whether double jeopardy prohibited the district court from entering a judgment and sentence against Appellant for voluntary manslaughter. Whether the district court abused its discretion when it allowed the victim to present to the court a written and oral victim impact statement.

Holdings: Claims alleging violations of a constitutional right are reviewed under the Court’s de novo standard of review. The double jeopardy provisions of both the U.S. Constitution and the Wyoming Constitution provide an accused three protections: 1) protection against a second prosecution for the same offense following an acquittal; 2) protection against a second prosecution for the same offense after a conviction; and 3) protection against multiple punishments for the same offense. Appellant failed to establish a violation of any of the protections. He urged an adoption of a rule of law, which would bar prosecution of a defendant following a trial where the jury is deadlocked on one count, but has reached a decision on the other count, where the count which has been decided and the retrial on the deadlocked count would merely result in a conviction for merged sentences. The district court denied Appellant’s motion to dismiss and the Court found no error in that decision. The Court stated that the Appellant waived all nonjurisdictional defenses when he entered a plea of nolo contendere.
Sentencing decisions are reviewed under the abuse of discretion standard. Because Appellant failed to object during sentencing, the review was limited to a search for plain error. Appellant relies on Wyo. Stat. Ann. § 7-21-102(a) which relates to notice which a district attorney must provide to a crime victim of his opportunity to make a victim impact statement for inclusion in the presentence report. It does not limit a victim’s right to also make an oral statement at sentencing. Wyo. Stat. Ann. § 7-2-103 appears to limit a crime victim to either the submission of a written statement for inclusion in the presentence report or an oral statement to the court. But, it also specifies that any failure to comply will not create a cause for appeal or reduction of sentence. A review of the record revealed that the district court focused primarily on Appellant’s extensive criminal record and the dangerous situation he created by his behavior. Nothing in the district court’s pronouncement supports Appellant’s contention that the court was unduly influenced by the victim’s statements. The Court found no prejudicial error in the sentencing process or abuse of discretion in the sentence imposed.

The district court's judgment is affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/9gxdt .

Summary 2005 WY 162

Summary of Decision issued December 21, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Farmer v. State

Citation: 2005 WY 162

Docket Number: 04-188

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Defendant): Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Date of Decision: December 21, 2005

Issues: Whether the trial court erred in admitting the prior testimony of a witness, John Biddix, because the witness was not legally unavailable or Appellant was denied his rights under the confrontation clause due to ineffective assistance of counsel in the first trial. Whether the trial court erred in denying that certain jury instructions be given. Whether prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial.

Holdings: The admissibility of prior testimony as an evidentiary ruling is in the sound discretion of the trial court. The Court will generally accede to the trial court’s determination of the admissibility of evidence unless the court clearly abused its discretion. The burden is on the defendant to establish such abuse. Prior testimony may be properly admitted if: (1) the witness is unavailable; (2) the former testimony was given by the witness while he was testifying under oath; and (3) the party against whom the testimony was offered had the opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination at the time of the former testimony. The existence of active arrest warrants and the difficulty in obtaining a current address for the witness led the district court to properly conclude that the witness was unavailable for testimony.
Appellant’s complaints concerning defense counsel’s performance at the first trial do not establish ineffective assistance of counsel. Prior testimony is admissible when given under oath, when given while defendant was represented by counsel, when defendant’s counsel could and did cross-examine, and when cross-examination at trial would not touch upon any new or significantly material line of inquiry. The Court found that the prior testimony of the witness met the four part test and found no abuse of discretion.
The district court rejection of three proposed jury instructions did not constitute fundamental error. Jury instructions must be considered as a whole and the search is confined to prejudicial error. The Court’s review of the record supports the evidentiary findings of the district court.
The Appellant bears the burden of proving prejudice. The propriety of the closing argument is measured in the context of the entire argument and compared with the evidence produced at trial. Appellant did not object to the State’s closing argument at trial, so review is limited to the plain error standard. Upon examination of the statements challenged by Appellant, the Court found that the prosecutor did not reference his own beliefs nor specifically comment upon the credibility of witnesses. Placed in proper context, the prosecutor’s statements are properly viewed as comments upon the evidence. The Court found no error.

The district court's judgment is affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/afcka .

Summary 2005 WY 161

Summary of Decision issued December 21, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Montoya v. Montoya

Citation: 2005 WY 161

Docket Number: 05-65

Appeal from the District Court of Laramie County, Honorable Edward Grant, Judge

Representing Appellant (Defendant): Carol K. Watson, of Phelan Law Offices, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Jakob Z. Norman, of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Date of Decision: December 21, 2005

Issues: Whether the Court should refuse to consider Appellant’s contentions because he failed to provide a statement of issues pursuant to W.R.A.P. 7.01(d). Whether the appeal should be dismissed because Appellant failed to provide a settled and approved statement of the evidence in violation of W.R.A.P. 3.03. Whether the district court abused its discretion in its disposition of marital assets. Whether reasonable attorney’s fees should be assessed against Appellant pursuant to W.R.A.P. 10.05.

Holdings: The district court’s disposition of marital property is reviewed under an abuse of discretion standard. Despite Appellant’s failure to provide the required statement of issues, it was obvious to the Court that his sole claim of error concerned the distribution of the marital property. The Court determined that Appellee had adequate notice of the issue and so declined to dismiss for failure to comply with W.R.A.P. 7.01(d). Appellant failed to provide a transcript of the proceedings or a statement of the evidence pursuant to W.R.A.P. 3.03 so that a proper evaluation of the trial court’s decision could be conducted. Appellant urged the Court to adopt “[a] change in the law, providing that when a judge has a hearing resulting in a Decree of Divorce for the parties, he must supply either a Statement of Facts or a Decision Letter.” The Court did not consider the argument because Appellant did not supply cogent argument or pertinent legal authority. Absent the transcript or statement of the evidence, the Court presumed the district court had reasonable evidentiary basis for its decision. Based upon the record, the Court did not find an abuse of discretion by the district court.
The Court certified there was no reasonable cause for appeal. Therefore sanctions were available. Appellee’s counsel was requested to submit a statement of costs and attorney’s fees to the Court for review. After review, an order will be entered for an appropriate award of costs and fees to Appellee.

The decision of the district court was affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/anjey .

Summary 2005 WY 160

Summary of Decision issued December 15, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: In the Matter of the Worker’s Compensation Claim of: Decker v. State, ex rel., Wyoming Medical Commission & Wyoming Worker’s Safety and Compensation Division

Citation: 2005 WY 160

Docket Number: 05-38

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellant (Petitioner): Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Date of Decision: December 15, 2005

Issues: Whether the Medical Commission order is supported by substantial evidence. Whether the Medical Commission order is contrary to law. Whether Appellant’s claim of thoracic outlet syndrome was unrelated to a compensable injury diagnosed and reported as bilateral wrist tendinitis.

Holdings: A worker’s compensation claimant has the burden of proving every essential element of his claim by a preponderance of the evidence. The scope of review is governed by Wyo. Stat. Ann. § 16-3-114(c). In appeals where both parties to a contested case submit evidence, appellate review of the evidence is limited to application of the substantial evidence test. The Court affirms the hearing examiner’s findings of fact if they are supported by substantial evidence. Even if sufficient evidence supports the administrative decision under the substantial evidence test, the Court applies the arbitrary-and-capricious standard as a “safety net” to catch other agency action that may have violated the Wyoming Administrative Procedures Act.

The Court found that the Medical Commission’s findings of facts failed to provide the Court with a rational basis for review. They therefore declined to address Appellant’s substantial evidence arguments. The Court has held that a hearing examiner must make findings of basic facts upon all of the material issues in the proceeding and upon which its ultimate findings of fact or conclusions are based. Unless that is done there is no rational basis for judicial review. The order does not contain an indication that the Medical Commission considered and weighed all material evidence offered by the parties. The Medical Commission decision stated concerns with inconsistent physical findings but does not specify the inconsistent physical findings which they found material. Without that specificity, the Court cannot evaluate the reasonableness of the Commission’s assertions. Because the Medical Commission’s order fails to make findings that adequately explain the rationale for the Commission’s decision, the order must be vacated.
On appeal, Appellant states that the Medical Commission recognized that the position being advanced by Appellant was that he sustained the aggravation over a substantial period of time. Because Appellant has settled on this position, the Commission’s revised order should analyze Appellant’s claim under the heightened burden of proof as required by Wyo. Ann. Stat. § 27-14-603. If Appellant’s condition is congenital, ie preexisting, then it will not be a compensable injury unless he can prove that his employment materially aggravated his condition. The claimant is required to prove by a preponderance of all the evidence that the work activities were a significant factor in the worsening of the preexisting condition.
The second compensable injury rule is not at issue in this case. Appellant was not claiming a new or different injury from his original injury. The Medical Commission must determine after weighing the evidence whether Appellant’s wrist pain presentation was anything more than a symptom of the syndrome.

The decision of the district court was reversed and remanded with directions to vacate the order denying benefits. The district court is to remand the case for supplemental findings of fact or other proceedings consistent with the opinion.

J. Golden delivered the opinion for the court.

Summary 2005 WY 159

Summary of Decision issued December 15, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Cotton v. McCulloh

Citation: 2005 WY 159

Docket Number: 05-60

Appeal from the District Court of Sheridan County, Honorable John C. Brackley, Judge

Representing Appellant (Petitioner): C. John Cotton of Cotton Law Office, Gillette, Wyoming; and Stephen H. Kline of Kline Law Office, PC, Cheyenne, Wyoming. Argument by Mr. Kline.

Representing Appellee (Respondent): R. Michael Vang of Brown & Hiser, LLC, Laramie, Wyoming.

Date of Decision: December 15, 2005

Issues: Whether the fee dispute committee and the district court failed to make necessary findings regarding mediation and GAL expenses, and regarding effect of Appellee’s agreement to pay fees. Whether credit should be afforded for $6,148.59 in mediation and initial GAL expenses paid at the request and the benefit of Appellee. Whether the court awarded fees in February 1999, or did the parties treat the funds awarded by the court as fees modifying the initial cap, including the fees now at issue. Whether Appellee’s claims are barred by principles of contract, laches and estoppel. Whether the fee dispute committee abused its discretion by the manner in which it entered a judgment in the fee dispute arbitration hearing.

Holdings: The Court considered the proper standard of review to apply to decisions from the fee dispute committee. They looked to the language of the Wyoming Rules for Resolution of Fee Disputes. The Court treated the fee dispute committee as an administrative agency for the purposes of appeal which recognized the importance of the committee’s function in resolving factual issues involved in fee disputes. They scrutinized the committee’s decision in the present case in accordance with the procedures for judicial review of administrative decisions as set forth in W.R.A.P. 12.01 et. seq. and § 16-3-114(c). They reviewed the committee’s conclusions of law de novo.
According to Fee Dispute Rule 11(c), the attorney is responsible for carrying the burden of proof by a preponderance of the evidence. The fee dispute committee used Appellant’s billing statements to fashion its decision. The Court reviewed the record and stated they could not fault the committee for using Appellant’s billing statements as the basis for determining the amounts due to him.
The Court reviewed the record and determined that substantial evidence supported the committee’s determination that the district court did not order Mr. Drake to pay a specific attorney’s fees award to Appellee. The district court’s order very clearly stated the interim distribution was not an award of attorney’s fees and that Appellee was free to use funds in any manner she wished. In addition, there was substantial evidence in the record to support the fee dispute committee’s decision that the fee cap was applicable to the divorce and initial appeal and that the parties’ conduct did not modify the terms of the representation agreement.
Each ultimate fact or conclusion must be thoroughly explained in order for a court to determine upon what basis the ultimate fact or conclusion was reached. The Court reviewed the record and found the committee had carefully reviewed the evidence and detailed its reasoning in extensive findings of fact and conclusions of law which were incorporated into the resolution order. The Court found no error in the procedure the committee used to articulate its decision.

The decision of the district court was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 158

Summary of Decision issued December 13, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Boykin v. Carbon County Board of Commissioners; Silver Spur Land and Cattle, LLC; Merrill; Switzer; and Vyvey.

Citation: 2005 WY 158

Docket Number: 05-83

Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Petitioner): William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellees (Respondents): Thomas A. Thompson, Carbon County Attorney Civil Deputy, Rawlins, Wyoming; John A. MacPherson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming. Argument by Mr. MacPherson.

Date of Decision: December 13, 2005

Issues: Whether there is substantial evidence in the record supporting the Carbon County Commissioner’s finding that County Road 648 was established under W.S. § 24-1-101 and the common law doctrine of adverse possession or prescription. Whether the rights to use a road acquired by a governmental entity under the common law doctrine of adverse possession or prescription are limited to the road’s historical use.

Holdings: The standard of review of an appeal of a Board decision is governed by the Wyoming Administrative Procedure Act. The Court considers the case as though it came directly to them from the Board. Appellant and Appellees presented evidence at the hearing so the review of the factual findings is limited to determining whether they were supported by substantial evidence.
The county presented evidence to rebut the presumption that use of the road was permissive, including testimony from the county road and bridge superintendent, neighboring landowners, other county road and bridge department employees, a former member of the school board, and Appellant’s mother. The Court concluded the county met its burden of rebutting the presumption that use of the road was permissive and established that its claim was hostile and adverse to Appellant’s claim of ownership in a clear and unequivocal way. Appellees did not rely upon the presumption of adverse and hostile use so it was not required to present evidence of “exclusive use” of the easement as suggested by Appellant.
Establishment of the road as a county road did not constitute an impermissible expansion of the historic adverse use that was the basis for the prescriptive claim. The Court has not applied the restrictive use principle to claims of adverse possession or prescription brought by public entities under § 24-1-101. The Court agreed with the district court’s reasoning that use of a public highway right-of-way cannot be limited to historical uses as may be the case for private claimants of particular prescriptive easements. The imposition of such restrictions on public roads or portions of public roads would defeat the very concept of a public road system.

The decision of the district court was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 157

Summary of Decision issued December 8, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Welty; Welty’s Inc., Welty’s General Store; & Welty’s General Merchants v. Brady (Bankruptcy Trustee for Johanna Welty)

Citation: 2005 WY 157

Docket Number: 05-73

Appeal from the District Court of Teton County, Honorable Nancy Guthrie, Judge

Representing Appellants (Defendants): Joe M. Teig and Paula A. Fleck of Holland & Hart, LLP, Jackson, Wyoming. Argument by Mr. Teig.

Representing Appellee (Plaintiff): Robert M. Shively and Amy M. Taheri of Shively, Taheri & Rochelle, PC, Casper, Wyoming. Argument by Mr. Shively.

Date of Decision: December 8, 2005

Issues: Whether the district court erred as a matter of law when it refused to vacate an arbitration award based on newly-discovered evidence that the award was procured by fraud. Whether the district court erred as a matter of law when it refused to vacate an arbitration award based on the mistakes of fact and law committed by the arbitration panel.

Holdings: Wyo. Stat. Ann. § 1-36-114 articulates the statutory bases for vacation of an arbitration award. In addition, the scope of judicial review of arbitration awards is very narrow. An award may be vacated if the appellant shows by clear and convincing evidence that the award was obtained by fraud, corruption, behavior beyond the bounds of natural justice, excess of authority, or a manifest mistake of fact or law appearing upon the face of the award. The Court reviewed the record without deference to the views of the trial court. Statements in the district court’s record showed they did consider the supplemental evidence and concluded Appellants had not met their evidentiary burden. The Court found that the district court properly denied Appellant’s motion to vacate the arbitration award on the basis of fraud.
Appellant’s claims of mistake of fact and law concern the weight and sufficiency of the evidence to support the arbitration award. The Court favors arbitration or other forms of alternative dispute resolution. The arbitration panel considered the elements of promissory estoppel in its decision. The panel concluded that Appellee had satisfied the elements consisting of (1) the existence of a clear and definite promise; (2) proof that the promisee acted to its detriment in reasonable reliance on the promise; and (3) a finding that injustice can be avoided only if the court enforces the promise. Appellant’s claims do not reach the level required to overturn an arbitration award. The Court deferred to the arbitrator’s right to consider the relevant equities of the parties and fashion an award. Appellants submitted the issue of the Welty’s Inc. responsibility to the arbitration panel. The Court has stated in other cases that the parties’ agreement defines the arbitrators’ authority. The Court concluded that the arbitration panel was within its authority when it considered the corporation’s responsibility for the loan and Appellant waived that argument by failing to submit it to the arbitration panel.
The final mistake of fact and law concerned Appellee’s failure to file a timely claim upon the estate after the death of Frank Welty, Jr. The Court noted that at the time of the death, Appellee did not have a claim against Frank Jr. because she did not yet know that her loans to the Appellants would not be repaid.

The decision was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 156

Summary of Decision issued December 5, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]


Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Mueller, Daley v. Zimmer, Crittenden
Mueller, Daley v. Star Valley Ranch Ass’n & Board of Directors, Cox and Cox, Ohman & Brandstetter

Citation: 2005 WY 156

Docket Number: 05-9 & 05-10

Appeal from the District Court of Lincoln County, Honorable Dennis L. Sanderson, Judge

Representing Appellants (Plaintiffs): Robert J. Logan, Thayne, Wyoming.

Representing Appellees (Defendants): John R. Hursh of Central Wyoming Law Associates, P.C., Riverton, Wyoming for Appellees Zimmer and Crittenden; William K. Rounsborg of White and Steele, P.C., Denver, Colorado for Appellees Star Valley Ranch Association and Star Valley Ranch Association Board of Directors; and Donald F. Carey of Quane Smith, LLP, Idaho Falls, Idaho, for Appellees Cox and Cox, Ohman & Brandstetter.

Date of Decision: December 5, 2005

Issues: Whether the Court lacked subject matter jurisdiction. Whether the district court issued an appealable order because it’s ruling on Cox’s motion for summary judgment did not resolve all issues between Cox and Appellants. Whether the District Court properly granted Appellees’ Motion for Summary Judgment with respect to Appellants’ derivative claims concerning alleged salary overpayments to Crittenden and Zimmer when Appellants failed to come forward with competent and admissible evidence or identified any legal authority to allow Appellants to challenge the actions of the Board. Whether the hiring of Crittenden and Zimmer as general managers without a personal services contract was an ultra vires act. Consideration of the fraud, negligent misrepresentation, and conflict of interest claims against Cox and Cox, Ohman & Brandstetter. Whether the district court’s summary judgment on the declaratory judgment regarding the amendment of the Association’s bylaws should stand.

Holdings: The standard of review for appeals from a summary judgment depends upon the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. When summary judgment motions are deemed denied by the lapse of 90 days from their filing, the district court does not lose jurisdiction because the denial of a summary judgment motion is not a final appealable order. Cox contended that the district court did not issue an appealable order for summary judgment because the judgment did not resolve all the issues between him and Appellants. All indications in the record are that the motion for summary judgment was the dismissal of all claims against Cox in their entirety. The district court order on Cox’s motion for summary judgment was a final, appealable order, and the Court has jurisdiction over the appeal.
Appellant’s allegation of fraud was not pleaded with particularity. There were no facts to support their claim. Whether or not Zimmer’s claim for overtime had merit or not is irrelevant to whether the mutual release he signed with the Board was valid. A contract made in settlement of claims is valid even if the claims settled are of doubtful worth. The business judgment rule is a standard of judicial review for director conduct. It presumes that business decisions are made by disinterested and independent directors on an informed basis and with a good faith belief that the decision will serve the best interests of the corporation. To overcome the business rule presumption, the shareholder plaintiff has the heavy burden of alleging and proving facts. Appellants have not alleged facts sufficient to rebut the presumption of the business judgment rule.
Appellant’s ultra vires claims against Zimmer and Crittenden were barred under subsection (a) of the Wyo. Stat. Ann. § 17-19-304 because Zimmer and Crittenden had completed their service as general managers. Ultra vires will not justify the reopening of a completely executed transaction.
The record does not contain any evidence to support a claim of fraud against Cox. The Court could not locate evidence to support an allegation that Cox failed to exercise reasonable care or competence in obtaining or communicating the information regarding Zimmer’s overtime claim to the Board. Wyo. Stat. Ann. § 17-19-831 prevents a corporate director of a nonprofit corporation from engaging in activity with the corporation in which the director has a direct or indirect interest unless certain specific procedures are followed by the governing board. The Court agreed with the district court conclusion that Cox was not doing business with the Association, but incurring expenses while furthering the Association’s business in his capacity as a director so the statute and bylaw were not applicable.
The district court determined that since a quorum was present and the amendment to the bylaws, increasing the number of directors from five to seven, received two-thirds of the votes present at the meeting, the amendment was effective under Art XI, Section 1, of the Association bylaws. The Court reviewed the record and agreed with the Association and the district court. The copy of the bylaws in the record contains a footnote that the bylaw was amended on June 24, 1995 which is the date of the disputed election. Without a cogent argument as to why this reference is not sufficient notice of the amendment under the Association’s bylaws, the Court stated they would not consider the matter further.
Pursuant to Wyo. Stat. Ann. § 17-9-630(d) relating to derivative suits, the Court, at the request of Cox and the Association, remanded to the district court for determination of attorney fees, costs and expenses because Appellants’ arguments were characterized by the failure to provide evidence in support of their allegations and by the repeated presentation of contentions that were not cogent or supported by citation to any relevant legal authority. Appellants were required to pay all of the defendants’ reasonable expenses, including counsel fees incurred in defending the claim that the employment of Zimmer and Crittenden were ultra vires.

The district court's summary judgments on Appellants’ derivative and declaratory judgment claims are affirmed. The cases were remanded to district court for a determination of costs and fees owed to defendants by Appellants for their frivolous and bad faith claims in their derivative action.

C.J. Hill delivered the opinion for the court.

Summary 2005 WY 155

Summary of Decision issued December 2, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Tarraferro v. State, ex rel., Wyoming Medical Commission & Wyoming Worker’s Safety and Compensation Division

Citation: 2005 WY 155

Docket Number: 05-53

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellant (Petitioner): Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Steve Czoschke, Senior Assistant Attorney General; and J.C. DeMers, Special Assistant Attorney General. Argument by Mr. DeMers.

Date of Decision: December 2, 2005

Issues: Whether Appellant was aggrieved or adversely affected by the Commission’s decision. Whether the Medical Commission’s decision was based on competent evidence.

Holdings: Review of administrative hearings is limited to a determination of factors as specified in Wyo. Stat. Ann. § 16-3-114(c). In appeals where both parties submit evidence at the administrative hearing, appellate review is limited to the application of the substantial evidence test. The Court reviews the entire record when making its ultimate determination on appeal. All parties agreed that the sole issue at the hearing was whether the employee claimant’s use of Marinol was necessary and reasonable.
Appellant had received benefits for 22 months of the Marinol prescription (for pain management) when the Commission determined that they would pay for the immediate prescription but any future benefits in this regard would be denied. The Court reasoned that issuing conclusions such as those at issue in the instant case, the Division and the Commission could introduce delay in the final resolution of worker’s compensation claims for years at a time. The Court considered the issues because otherwise it would operate as a hardship to the claimant as well as similarly situated future claimants.
The essence of the Medical Commission’s findings was that Marinol was not reasonable and necessary, was contraindicated in Appellant’s case, and that it was experimental. The Commission relied upon the PDR and Medline®. The Appellant was not given notice of that independent research. The Court reviewed the evidence properly of record and found it supported only one conclusion: That Marinol was a reasonable and necessary, non-experimental treatment for Appellant’s pain.

The order of the district court affirming the Medical Commission’s decision was reversed and remanded to the Commission with directions that it void its decision to deny Appellant his prescription and enter an order to the opposite effect.

C.J. Hill delivered the opinion for the court.

Summary 2005 WY 154

Summary of Decision issued December 1, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]


Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Cathcart v. State Farm Ins. Co.

Citation: 2005 WY 154

Docket Number: 05-43

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge

Representing Appellant (Plaintiff): Terry W. Mackey of Moriarty, Gooch, Badaruddin & Booke, LLC, Cheyenne, Wyoming; Todd H. Hambrick and Stephanie A. Hambrick of Krampner, Fuller & Hambrick, Casper, Wyoming; Shawna M. Geiger of Shawna Mackey-Geiger, P.C., Greenwood Village, Colorado. Argument by Mr. Mackey.

Representing Appellee (Defendant): Julie Nye Tiedeken of Tiedeken & Scoggin, Cheyenne, Wyoming.

Date of Decision: December 1, 2005

Issues: Whether the trial court correctly granted Appellee summary judgment on Appellant’s breach of contract claim for the reason that there was no material issue of fact to be decided by the trier of fact. Whether the trial court properly allowed evidence of the motor vehicle accident which gave rise to Appellant’s claim for breach of the duty of good faith and fair dealing to be admitted into evidence during trial. Whether the trial court properly allowed the jury to hear about the factors considered by State Farm in its evaluation including witness statements of marijuana use by Appellant. Whether the trial court properly allowed the jurors to submit questions to be asked of witnesses pursuant to Rule 39.4 of the Wyoming Rules of Civil Procedure. Whether the court correctly instructed the jury on the law.

Holdings: Summary judgment orders are reviewed with the perspective most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may be drawn fairly from the record. Admissibility of evidence and alleged error regarding juror questions are reviewed with an abuse of discretion standard. The review of claimed error with respect to jury instructions is controlled by W.R.C.P. 51(b).
In this case, the record did not contain a transcript of the summary judgment hearing nor a decision letter setting forth the district court’s ruling. As a result, the Court did not know the basis for the district court’s decision to grant summary judgment on the breach of contract claim. The Court agreed with Appellee that the policy language was clear and unambiguous and therefore limited their inquiry to the four corners of the document and interpreted it with the ordinary and usual meaning of its terms. Appellee complied with the requirements of the policy provision for uninsured motorist. The district court properly granted summary judgment on the breach of contract claim. Review of the scheduling order and the course of events leading up to the summary judgment by the district court led the Court to state they were hard pressed to find error, particularly where the summary judgment at issue involves interpretation of clear contract language and little in the way of factual dispute.
Appellant’s claim for breach of good faith and fair dealing must be established by showing the existence of a contract, a breach and damages.

The decision was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 153

Summary of Decision issued December 1, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Cundy and Sundance v. Range Telephone Coop, Inc.
Sundance and Cundy v. Union Telephone Co.

Citation: 2005 WY 153

Docket Number: 04-218; 04-220

Appeal from the District Court of Crook County, Honorable Gary P. Hartman, Judge

Representing Appellant (Defendant): Cecil A. Cundy of Sundance, Wyoming.

Representing Appellees (Plaintiffs): Bruce S. Asay of Cheyenne, Wyoming for Range Telephone Cooperative, Inc.; and Paul J. Drew of Gillette, Wyoming for Union Telephone Company.

Date of Decision: December 1, 2005

Issues: The issues in these two interrelated cases are very similar. Case 04-218: Whether Range Telephone had a right-of-way for ingress and egress to maintain the facilities – including microwave facilities, located atop Sundance Mountain in Crook County, Wyoming. Case 04-220: Whether Cundy may assert the Statute of Frauds to defeat the validity of Union Telephone’s lease. Whether there is any evidence to support Cundy’s affirmative claim that Union Telephone’s predecessors were without authority to transfer Union Telephone’s leasehold property. Whether the trial court properly granted partial summary judgment in favor of Union Telephone.

Holdings: Case 04-218: This case is an appeal of a summary judgment in favor of Range’s motion. Range, by two different and separate chains of authority, had purchased right-of-way to access its deeded property located on Sundance Mountain. Wyoming courts have stated in unequivocal terms that the owner of an easement has the absolute right to occupy and use the easement and is entitled to injunctive relief to prevent interference by the landowner. A plain reading of the transfer documents indicates that the Grantors passed to Grantees and their successors in interest or assigns the right of ingress and egress.
Summary judgment is granted on the finding that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. The record is examined from the vantage point most favorable to that party who opposed the motion, affording that party the benefit of all favorable inferences that fairly may be drawn from the record. The construction of reservations in deeds are to be narrowly and strictly construed against the grantor and in favor of the grantee. The district court properly concluded that the lease and its concomitant authorization for Range to use the right-of-way conveyed for the limited purposes associated with that lease was efficacious and is affirmed. The district court also noted that Range had a second right-of-way through acquisitions of rights-of-way held by its predecessors in interest which permitted Range access. Implicit in the district court’s findings is that Range’s use of the second right-of-way does not create a significant additional burden to that right-of-way and the interest Cundy has in it. Trust instruments are to be construed as authorizing all acts within the use contemplated to effectuate the object of the creator of the trust. Changes in circumstances may give rise to an assumption that the settler of the trust would allow the trustee to adjust his conduct to those changes. The Court stated that circumstances in the field of telecommunications have changed dramatically and it is not a leap of logic or sound judgment to conclude that an extension of telephone services is related to the distribution of television.
All the parties in the instant case had complete notice of all claims and were afforded a full opportunity to develop and litigate the issues the district court ultimately decided. The district court determined that Range did have access to the right-of-way which Cundy had blocked. The Court reviewed the record and held that Range did state a cause of action upon which relief could be granted. Summary judgment in favor of Range was affirmed.
Case 04-220: The issues in the Union Telephone case were identical to those of Range and in light of the condition of the pleadings and proceedings in the case, the Court affirmed the district court’s order in its totality.

C.J. Hill delivered the opinion for the court.

Summary 2005 WY 152

Summary of Decision issued November 29, 2005

[SPECIAL NOTE: This opinion uses the "Universal Citation." It is given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: DeLoge v. State

Citation: 2005 WY 152

Docket Number: 04-85, 04-129

Appeal from the District Court of Laramie County, Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Steven A. DeLoge, Pro se.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General, Georgia L. Tibbetts, Senior Assistant Attorney General; and Lucas E. Buckley, Student Intern.

Date of Decision: November 29, 2005

Issues: 04-85 Whether the district court erred when it declined to rule upon Appellant's motion for the preservation and return of seized property.

04-129: Whether the district court erred when it denied Appellant's motion to withdraw his guilty pleas without affording him an evidentiary hearing.

Holdings: Case 04-85

Both W.R.Crim.P. 41(e) and Wyo. Stat. 7-2-105 make it plain that Appellant may seek to have his property restored to him, absent some justification provided by the State for its continued retention. However, Appellant filed a notice of appeal before the district court had an opportunity to decide his motion for return on its merits. Whether the district court intended to simply ignore the motion, or to rule on it eventually, is not revealed by the record. Appellant's appeal was premised on the notion that his motion had been deemed denied by operation of W.R.Civ.P. 6(c) since W.R.Crim.P. 1(a) invokes the Wyoming Rules of Civil Procedure on procedures where the Wyoming Rules of Criminal Procedure are silent. However, the Court declined to import the "deemed denied" rule into criminal proceedings where a district court is required either by the tenor of the governing rules, or the precepts of due process, to timely dispose of motions filed by criminal defendants. For this reason, Appellant's appeal is dismissed and the matter is remanded to the district court with directions that it rule in a timely manner on the merits of Appellant's motion for the return of his property.

Case 04-129

W.R.Cr.P. 32(d) provides that if a motion to withdraw a guilty plea is made after sentencing, a plea "may be set aside only to correct manifest injustice." "Manifest injustice" contemplates a situation that is unmistakable or indisputable, was not foreseeable, and affects the substantial rights of a party. It is, in part, intended to address a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure. The party seeking to withdraw his pleas bears the burden of demonstrating manifest injustice. Justification for this heightened standard for withdrawal of a plea after sentencing is based in the practical considerations important to the proper administration of justice. Before sentencing, the inconvenience to court and prosecution
resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. The result would be to undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process. A district court has discretion in determining whether a party has proved manifest injustice. Absent an abuse of that discretion, the district court's determination will not be disturbed. In the present action, Appellant's motion did not set out facts or circumstances that constituted a manifest injustice. Therefore, the district court's denial of the motion is affirmed on the basis that the district court's only proper course of action was to deny the motion as failing the "manifest injustice" test.

Although not explicitly raised as an issue in these appeals, it should be noted that Appellant has exhausted his state remedies in this criminal matter by means of his direct appeal and two petitions for post conviction relief. Although the district court is required to consider Appellant's motion for the return of his property, it may decline to consider any additional matters relating to this criminal case. Any further pleadings filed by Appellant in the district court relating to
this criminal matter may be summarily dismissed or denied by the district court.

The appeal in Case No. 04-85 is dismissed, and that matter is remanded to district court for further proceedings consistent with this opinion.
The appeal in Case No. 04-129 is affirmed.

C.J. Hill delivered the opinion for the court.

Summary 2005 WY 151

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Basden v. Cole

Citation: 2005 WY 151

Docket Number: 05-45

Appeal from the District Court of Lincoln County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): C.M. Aron, Aron and Hennig, Laramie, Wyoming

Representing Appellee (Plaintiff): Richard W. Beckwith of Greenhalgh, Beckwith, Lemich, Stith & Cannon, Rock Springs, Wyoming

Date of Decision: November 28, 2005

Issues: Whether the district court properly considered the child's preference as one of many factors in making its decision to modify custody. Whether the district court committed reversible error when it accepted closing arguments from the parties, including the guardian ad litem, in the form of written findings of fact and conclusions of law, following a trial on the merits.

Holdings: In custody matters, the welfare and needs of the children must be given paramount consideration. That which is in the best interests of the child is a question for the trier of fact, and will not be overturned unless an abuse of discretion is present or there has been a violation of some legal principle. The party seeking to modify established child custody provisions of a divorce decree has the burden of showing that a material change in circumstances that affects the child's welfare occurred subsequent to the entry of the initial decree, that the change warrants modification of the decree, and that the modification will be in the best interests of the affected child. A child's preference as to custody may be considered by the trial court. In determining the weight to be given a child's preference several factors should be considered: the age of the child; the reason for the preference; the relative fitness of the preferred and non-preferred parent; the hostility, if any, of the child to the non-preferred parent; the preference of other siblings; and whether the child's preference has been tainted or influenced by one parent against the other.

In the present action, although the fact that parties' daughter had expressed a preference for living with Appellee was nothing new, according to the testimony of the child, her professed preference to be in Appellee's custody was the end result of many factors, and that preference had grown more urgent over the passage of time. Daughter's need for Appellee in her day-to-day life had increased as she matured into her teenage years. She was increasingly uncomfortable living in a household with three males, in particular sharing a single bathroom with them. She was not close to her brothers and she was skeptical of Appellant's parenting abilities because of his tendency toward anger, his consumption of alcohol, and his verbal abuse of her. In counterpoint, daughter felt close to Appellee and was more comfortable in her home. She also felt she could talk to Appellee about things that she could not talk about with Appellant. Additionally there had improvements in Appellee's abilities to parent and provide for Daughter, i.e., she had mended her ways, was gainfully employed, had the means to support Daughter, had remarried, was living in a nice home, etc. The record also reflects that the district court viewed the custody arrangements as a tough decision when it was made in 1998. However, that was affected to some extent because Appellee had been a stay-at-home mom, was not employed, had no income or assets, and had run off with another man. A change in these circumstances are relevant to a determination of a material change in circumstances. The standard is not one that even a good parent must improve to retain custody, but rather at the time of the hearing on modification it was relevant that both parents were then fit and proper persons to have custody and, in light of that, what was in the best interests of Daughter. After a comprehensive consideration of all these facts and circumstances taken together, and in light of Daughter's strongly expressed preference to live with Appellee, the district court did not abuse its discretion in finding that a material change in circumstances existed and by awarding primary custody to Appellee. Moreover, it is evident from the record that, in making this difficult decision, the district court considered and weighed all of the relevant factors applicable to an award of child custody under Wyo. Stat. 20-2-201(a) (including the separation of siblings), as well as the factors applicable to the consideration of a child's preference.

A Guardian Ad Litem (GAL) may not be a fact witness. In addition, attorneys who serve as GALs and also appear as a witness in that same matter commit an ethical violation. However, an ethical violation, not brought about by the prevailing party, will be reversed only if it resulted in manifest injustice. Manifest injustice contemplates a situation that is unmistakable or indisputable, was not foreseeable, and affects the substantial rights of a party. In the case at hand, Appellant complains that the GAL prefaced her findings of fact with statements that: She spoke with several persons who did not appear at trial; she reviewed reports from the Department of Family Services relating to Appellant and those reports also were not in the record; it was her opinion that Daughter's psychological needs had changed (an unqualified opinion without foundation and without opportunity to cross-examine); the step-father was not a danger to daughter; and Appellee considered it important that daughter maintain a relationship with her brothers (Appellee did not so testify). However, based on the record, the district court might reasonably deduced that daughter's psychological needs had changed based upon the testimony of one of Appellant's expert witnesses. Granted, the expert did not purport to speak directly about daughter, but rather his testimony was presented for its general applicability to teenage girls in these circumstances. It seems fair enough to conclude that it appeared to apply to daughter, in light of all the other evidence presented. The district court also might well have concluded from all of the evidence presented (especially Appellee, step-father, and daughter) that step-father was not a "danger" to daughter, even though no witness used those exact words. It is apparent that Appellee did not say the specific words that the sibling relationships were important, but certainly her testimony evinced a continued interest in all the children being together as much as possible. If there was error at all, it certainly did not arise to a manifest injustice or otherwise mandate reversal.

There was no error in the proceedings below either with respect to the district court's conclusion that there was a material change in circumstances or that it was in the best interests of the child to be in Appellee's custody. Any excess material contained in the GAL's submission to the district court and included in the final order did not constitute a manifest injustice under the circumstances of this case and does not require reversal. The order of the district court is, therefore, affirmed.

C.J. Hill delivered the opinion for the court.

Summary 2005 WY 150

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Veile v. Bryant

Citation: 2005 WY 150

Docket Number: 05-48

Appeal from the District Court of Washakie County, Honorable H. Hunter Patrick, Judge

Representing Appellant (Petitioner): David Veile, Pro Se

Representing Appellee (Respondent): Michael Bryant, Pro Se, and Francisco L. Romero, Ft. Collins, Colorado

Date of Decision: November 28, 2005

Issues: Whether the district court's order denying payment of costs to Appellant should be reversed because it violates the Wyoming Supreme Court's Mandate Reversing Judgment and/or Rule 10.04 of the Wyoming Rules of Appellate Procedure.

Holdings: In the case at hand, the Wyoming Supreme Court ordered in its mandate that costs were to be awarded to the prevailing party. A party should not be deemed the prevailing party for purposes of taxing costs unless the party improves his or her position by the litigation. The decision of Appellant v. Appellee, 2004 WY 107 (2004) cannot reasonably be read to have improved Appellant's position in any way. Although in that decision the Supreme Court disagreed with the District Court on the issue of jurisdiction, it ruled against Appellant on all of his substantive claims and upheld the State Board of Embalming's decision in its entirety. The effect of the district court's decision, had it stood, would have been to leave in place the Board's decision denying Appellant all relief he requested. The effect of the Supreme Court's decision was the same. The Board's finding that Appellant had not proven his case against Appellee was affirmed and the Board's decision denying Appellant all requested relief was upheld. Appellant clearly did not improve his position in his litigation against Appellee through his appeal to this Court.

As a final issue, Appellee claims that there is no reasonable cause for this appeal and that sanctions should be awarded W.R.A.P. 10.05. In this case the lack of any cogent argument to support the appeal provides the circumstance making sanctions appropriate. The Court in its earlier decision ruled against Appellant on all of his claims of Board error. Appellant's interests in his litigation against Appellee were in no way vindicated through his appeal and no reasonable argument could be proffered to support his request for payment of costs. No good faith legal basis for this action can be discerned. Pro se litigants are not excused from the requirement that an appeal be supported by cogent argument.

Appellant was not a prevailing party entitled to an award of costs. Thus, the district court's order denying Appellant's motion for payment of costs is affirmed. Appellee shall submit a statement of costs and attorney's fees associated with responding to this appeal. Upon review, an appropriate amount in the form of sanctions will be awarded.

J. Golden delivered the opinion for the court.

Summary 2005 WY 149

Summary of Decision issued November 23, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Moe v. State

Citation: 2005 WY 149

Docket Number: 03-139

On Rehearing

Representing Petitioner (Defendant): Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Public Defender.

Representing Respondent (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Assistant Attorney General.

Date of Decision: November 23, 2005

Issue: Petitioner raised several constitutional issues, a prosecutorial misconduct issue, and several evidentiary rulings issues in his appeal, Moe v. State, 2005 WY 58. The Court agreed to rehear Petitioner’s argument challenging the trial court’s evidentiary ruling that refused admission of a hearsay statement as a present sense impression. The witness was unavailable at trial.

Holding: The Court reviews evidentiary rulings against an abuse of discretion standard. The Petitioner did not raise the present sense impression exception to the hearsay rule at trial. The Court stated that the Petitioner failed to make a good faith attempt to relate the applicable law to the facts. The Court decided that the statement in question did not meet the requirements of a present sense impression statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter because the statement was made at least thirty-five minutes after the event.

The district court's judgment is affirmed.

J. Voigt dissented with which D.J. Stebner, Retired joins.
The Justice stated that he concurred with the rationale and result of this limited opinion, but continues to dissent for reasons set forth in Moe v. State, 2004 WY 58, ¶ 27, 110 P.3d 1206, 1215 (Wyo. 2004) (Voigt, J. dissenting).

J. Golden delivered the opinion for the court.

Summary 2005 WY 148

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Taylor v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division

Citation: 2005 WY 148

Docket Number: 05-14

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing Appellant (Petitioner): P. M. "Mike" Roberts, Erickson & Roberts, Rawlins, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; John W. Renniesen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Brandon W. Snyder, Special Assistant Attorney General.

Date of Decision: November 22, 2005

Issues: Whether the hearing examiner's decision to deny workers' compensation benefits is supported by substantial evidence and is in accordance with law.

Holdings:
In order to be eligible to receive worker's compensation benefits, a claimant must have sustained an "injury" which is defined by Wyo. Stat. 27-14-102(a)(xi) as, "any harmful change in the human organism other than normal aging . . . arising out of and in the course of employment while at work . . . ." In order to prove that her injury occurred in the course of employment, Petitioner must establish a causal connection between her work-related incident and her current complaints. Whether a causal connection exists is a question of fact.

With respect to medical testimony, a standard of reasonable medical certainty with respect to such causal connection will not be invoked. Testimony by the medical expert to the effect that the injury 'most likely,' 'contributed to,' or 'probably' is the product of the workplace will suffice. However, a hearing examiner is entitled to disregard an expert opinion if he finds the opinion unreasonable, not adequately supported by the facts upon which the opinion is based, or based upon an incomplete and inaccurate medical history provided by the claimant. It is the obligation of the trier of fact to sort through and weigh the differences in evidence and testimony, including that obtained from medical experts. The task of determining the credibility of the witnesses and weighing the evidence is assigned to the trier of fact, and its determination will be overturned only if it is clearly contrary to the great weight of the evidence. Where the testimony of a disinterested witness is not directly contradicted but there are circumstances which controvert the testimony or explain it away, or if such testimony is clouded with uncertainty and improbability, or otherwise appears to be unreliable or unworthy of belief, the trier of fact is not bound to accept it. Justice does not require a court or jury to accept as an absolute verity any statement of a witness merely because it is not directly or specifically contradicted by other testimony, and there are many things which may properly be considered in determining the weight that should be given the direct testimony of a witness even though no adverse verbal testimony is adduced. If such testimony is evasive, equivocal, confused, or otherwise uncertain, it may be disregarded. In the present action, there is testimony in the record from a physician's assistant that the Petitioner's current problems "probably do relate to that initial injury on the 2nd of March 2002." However, since this testimony could properly be construed as equivocal and based upon an inadequate medical history, the hearing examiner was not required to accept it. Additionally, Petitioner's discharge from physical therapy in July 2002 and her admission that she was pain free for several months thereafter further support the finding that her initial injury had resolved by July 2002. Thus, substantial evidence exists to support the findings of the hearing examiner that Petitioner failed to establish a causal connection between her current medical problems and the 2002 work injury.

The decision of the OAH is affirmed.

J. Burke delivered the opinion for the court

Summary 2005 WY 147

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: McElwain v. McElwain

Citation: 2005 WY 147

Docket Number: 05-32

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge

Representing Appellant (Defendant): Vernon R. McElwain, pro se

Representing Appellee (Plaintiff): James A. Hardee, Douglas, Wyoming

Date of Decision: November 22, 2005

Issues: Whether the district court erred in determining that the unpaid balance of a mortgage debt established by a divorce decree was not extinguished when the property was refinanced. Whether the district court erred in awarding delinquent child support because the minor child was emancipated.

Holdings: In the present action, Appellant was ordered to pay one-half of the mortgage debt directly to Appellee. The decree permitted Appellant to pay his portion of the indebtedness in installments of $210.00 per month. Nothing in the divorce decree provides for this debt to be extinguished upon refinancing and Appellant points us towards no authority to support his position. Furthermore, the decree awarded ownership of the property to Appellee and authorized her to "mortgage, sell, pledge or otherwise deal in such property . . . ." The provisions of the decree did not condition Appellant's obligation to Appellee upon the existing financing or her continued ownership of the residence. Alternatively, Appellant appears to challenge the amount of the judgment. Appellant claims the decree capped his total obligation for the mortgage at $20,000.00. He denies responsibility for any additional amounts for interest or other costs normally associated with a mortgage. Appellant contends he has paid approximately $14,490.00 and the judgment for $21,194.00 fails to account for his past payments. Pursuant to the decree, Appellant was ordered to pay "[o]ne half (1/2) of [the] Mortgage debt (est. at $20,000.00 each) . . . ." The divorce decree did not specifically exclude interest or the payment of other costs associated with the mortgage debt. The outstanding mortgage debt at the time of refinancing in January 2004 was $42,388.00. The judgment entered by the court, $21,194.00, is one half of that amount. Furthermore, the hearing was not recorded and no statement of the evidence was filed by either party pursuant to W.R.A.P. 3.03. Because the record is insufficient, it must assumed that the district court correctly applied Appellant's prior payments to the outstanding mortgage balance. In the absence of anything to refute the trial court's findings, it will assumed that the evidence presented was sufficient to support those findings and it will be sustained. Accordingly, there was no error by the trial court in entering its judgment concerning the mortgage debt.

In Wyoming, emancipation is recognized under both statutory and common law. A declaration of emancipation shall be conclusive evidence that the minor is emancipated. Emancipation may also be proved by other evidence like any other fact. In the present action, Appellant does not contend that a declaration of emancipation exists to establish emancipation. However, he has failed to provide an adequate record to support his claim that sufficient evidence was presented to establish emancipation. Absent a sufficient record, it must be assumed that sufficient evidence exists to support the trial court's implicit finding that the child was not emancipated.

The decision of the district court is affirmed.

J. Burke delivered the opinion for the court.

Summary 2005 WY 146

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Butcher v. State

Citation: 2005 WY 146

Docket Number: 04-208

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia Tibbetts, Senior Assistant Attorney General.

Date of Decision: November 22, 2005

Issues: Whether the district court erred in denying the Appellant's motion for judgment of acquittal on the first-degree murder charge. Whether there was sufficient evidence to sustain the finding of guilt on the lesser-included offense of second-degree murder. Whether the jury was improperly instructed on the meaning of the word "purposely". Whether cumulative prejudicial "flight" evidence was improperly admitted. Whether the prosecutor committed misconduct by eliciting irrelevant prejudicial evidence and by making improper argument.

Holdings: Motions for judgment of acquittal are governed by W.R.Cr.P. 29. The standard of review provides that if there is substantial evidence to sustain a conviction of the crime, the motion for acquittal should not be granted. The jury found the Appellant guilty of the lesser-included offense of second-degree murder which in effect acquitted Appellant of the charged offense of first-degree murder. The Court stated could be no possible error or prejudice.

The standard of review for sufficiency of the evidence is to assess whether all the evidence presented is adequate to form the basis for an inference of guilt beyond a reasonable doubt when the evidence is viewed in the light most favorable to the State. The Court reviewed the record and found it reasonable that the jury conclude that Appellant's claim of self-defense was untrue.

In criminal cases, an essential function of jury instructions is to instruct the jury concerning the elements of the crime. Appellant argues that the definition instructions were improper because "the type of 'purposeful' conduct necessary to establish second degree murder cannot be undertaken thoughtlessly." The Court stated that there was no evidence in the record that the Appellant's stabbing was "undertaken thoughtlessly" or that the jury convicted Appellant under any such standard.

Admissibility of evidence decisions are reviewed for an abuse of discretion. The record clearly contains testimony and argument of evidence of flight. The Court has consistently held that evidence of flight is admissible as circumstantial evidence of guilt. The Court found no clear violation of an unequivocal rule of law.

The Court decides claims of prosecutorial misconduct by reference to the entire record and where the claim is one of improper argument, they consider it in the context of the entire argument. In the context of the full record and the entirety of the parties' arguments, there was neither a clear violation of unambiguous law, nor any resultant prejudice to the Appellant. The Court reiterated that they are reluctant to find plain error in closing arguments because they do not want to place the district court in the position of having to act as opposing counsel.

The district court's judgment is affirmed.

J. Voigt delivered the opinion for the court.

Summary 2005 WY 145

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Noonan v. Noonan

Citation: 2005 WY 145

Docket Number: 05-27

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing Appellant (Defendant): Tom Sutherland, Casper, Wyoming

Representing Appellee (Plaintiff): Richard L. Harden, Casper, Wyoming

Date of Decision: November 22, 2005

Issues: Whether the district court abused its discretion in refusing to set aside a default divorce decree.

Holdings: W.R.Civ.P. 55(b)(2) provide a that if in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper. The clear import of this language, in the context of the present case, is to require the district court to base its findings of fact regarding property distribution, child custody, visitation, and support on some evidence in the record. An entry of default prevents the defaulted party from appearing and presenting evidence; it does not relieve the non-defaulting party of its obligation to produce an evidentiary basis for the desired relief, nor does it relieve the district court of its obligation to base its findings of fact upon such evidence.

Wyo. Stat. Ann. § 20-2-308(a) provides that no order establishing or modifying a child support obligation shall be entered unless financial affidavits on a form approved by the Wyoming supreme court which fully discloses the financial status of the parties have been filed, or the court has held a hearing and testimony has been received. While in a default situation, it may be difficult or even impossible to obtain the financial affidavit of the defaulted party, the obligation remains for the non-defaulting party to file such affidavit, and the obligation remains for the district court to obtain sufficient financial evidence of both parties' income to make factual determinations, and to comply with the presumptive child support guidelines found in Wyo. Stat. 20-2-304 or to determine whether to deviate from those guidelines, as allowed by Wyo. Stat. 20-2-307. That did not happen in this case.

Additionally, child custody decisions must be based upon the best interests of the children, with consideration given to specific statutory factors. Child custody and visitation orders, even in the default situation, may not be entered without consideration of these factors. That did not happen in this case.

Special rules have been developed for cases where the district court orders split custody of the parties' children. When the court exercises its discretion in custody matters involves splitting custody of children between parents or other unconventional custody approaches, the trial court must provide an explanation of its reasoning and place its findings on the record. A reasoned explanation and an expression of findings of a trial court's conclusion will assure the reviewing court that a comprehensive evaluation of all relevant factors occurred prior to the award of custody. In the case at hand, not only were the district court's findings inadequate, there was almost no evidence before the district court

The default judgment in this case is vacated, with the exception of that portion of the judgment granting a divorce to the parties. There was no evidentiary basis for the district court's findings of fact in regard to property distribution, child custody and visitation, and child support. The denial of the motion to set aside the default divorce decree is reversed to that extent and this matter is remanded to the district court for further proceedings consistent herewith.

J. Voigt delivered the opinion for the court.

Summary 2005 WY 144

Summary of Decision issued November 18, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Holloway v. Wyoming Game and Fish Commission

Citation: 2005 WY 144

Docket Number: 05-52

Appeal from the District Court of Sweetwater County, Honorable Nena James, Judge

Representing Appellant (Petitioner): Cleveland Holloway, pro se.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Jay Jerde, Deputy Attorney General; and Thomas W. Rumpke, Senior Assistant Attorney General.

Date of Decision: November 18, 2005

Issues: Whether the decision of the Wyoming Game and Fish Commission to deny Cleveland Holloway’s request for a refund of his bighorn sheep license fee and to restore his preference points arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.

Holdings: Both Appellant and Appellee presented evidence before the Commission, therefore the Court’s review was limited to an examination of the entire record to determine whether there was substantial evidence to support the agency’s findings. Chapter 44, § 22(e) of the Commission’s rules and regulations sets out the procedure and requirements for obtaining a license fee refund and restoration of preference points. The Court reviewed the evidence and concluded that substantial evidence supported the determination that Appellant failed to timely file his request as provided in the regulation. That failure alone provided an adequate basis for denying his request.

The decision was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 143

Summary of Decision issued November 17, 2005

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" itation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Glover v. Crayk

Citation: 2005 WY 143

Docket Number: 04-174

Appeal from the District Court of Laramie County, Honorable Thomas T.C. Campbell, Judge

Representing Appellant (Plaintiff): Donald A. Cole, Cheyenne, Wyoming

Representing Appellee (Defendant): John J. Metzke and Billie LM Addleman of Hirst & Applegate, Cheyenne, Wyoming

Date of Decision: November 17, 2005

Issues: Whether the district court erred in modifying the formula for determining the Appellee's proportionate share of Appellant's military pension as set forth in the property settlement agreement and divorce decree.

Holdings: Neither the parties nor the district court specify under what authority Appellee's motion was brought or granted. Appellee's motion was styled a "Motion to Amend and/or Modify Decree of Divorce." Such a motion, however, could not be entertained by the district court because, once their divorce became final, the district court no longer had the authority to modify the property division provided by the divorce decree. The district court, however, retained the authority to clarify an ambiguous property settlement provision provided in the original decree in order to effectuate the provision. The appropriate manner to handle such a clarification is by way of a W.R.C.P. 60(a) motion to correct a clerical mistake. Pursuant to W.R.C.P. 60(a), a court may correct a clerical mistake "at any time of its own initiative. Because of the patent ambiguity in the divorce decree, the district court would have been well within its discretion to sua sponte invoke Rule 60(a). It appears from the record and the order on appeal that the district court approached the proceedings as a request for clarification of an ambiguous divorce decree, thereby implicitly invoking Rule 60(a).

When reviewing a district court's application of Rule 60(a), the Court employs a two-part process. The first question that must be answered is whether the correction or clarification of a judgment relates to a "clerical mistake." If so, the district court's order is reviewed to ascertain whether it clarified or modified the original judgment.

In the present action, the proceeding properly related to clarifying a clerical mistake. The language of the original divorce decree must be reviewed to determine whether the court correctly clarified the decree. To do this, the language of the decree is to be construed within the context in which it was written. The Court may look to the surrounding circumstances, the subject matter, and the purpose of the instrument to ascertain the intent of the parties at the time it was made. The divorce decree in the case at hand provided for the division of Appellant's military retirement benefits. The ambiguity in the decree is the absence of a formula to be applied in calculating the amount Appellee is entitled to from Appellant's retirement benefits. The district court accepted Appellee's argument that her one-half should be calculated pursuant to the "time rule." The "time rule" is computed by multiplying 50% times a fraction, the numerator of which is the number of months of marriage during Appellant's creditable military service and the denominator of which is the total number of months of Appellant's creditable military service. The result is the percentage of Appellant's disposable retired pay to which Appellee is entitled. This formula would allow Appellee to realize a benefit from promotions and pay increases Appellant may have received following the divorce up until the time of his retirement. However, the language of the divorce decree states that Appellee's entitlement is limited to "one-half (1/2) of the sum that accrued in [Appellant's] retirement fund during the first seventeen (17) years of [Appellant's] military career." That this language prohibits Appellee from benefiting from any income increases he received after the seventeen years. Thus, Appellee's formula is inconsistent with the language of the divorce decree. Under these circumstances, the district court erred in adopting Appellee's formula.

The divorce decree does not provide for Appellee to benefit from any promotions and pay increases Appellant received after seventeen years of military service. The order of the district court is reversed, and this matter is remanded to the district court for further proceedings consistent with this opinion.

J. Golden delivered the opinion for the court.