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.

Summary 2005 WY 142

Summary of Decision issued November 16, 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: Andersen, McCampbell v. Hernandez

Citation: 2005 WY 142

Docket Number: 05-25

Appeal from the District Court of Park County, Honorable Hunter Patrick, Judge

Representing Appellants (Plaintiffs): Stephen L. Simonton of Simonton & Simonton, Cody, Wyoming and L.B. Cozzens of Cozzens, Warren & Harris, Billings, Montana.

Representing Appellee (Defendant): Catherine Mead of Mead & Mead, Jackson, Wyoming.

Date of Decision: November 16, 2005

Issues: Whether this appeal must be dismissed pursuant to W.R.A.P. 2.01 because it was not timely filed. Whether the “deemed denied” rule applies to the taxation of costs awarded pursuant to W.R.C.P. 54 and U.R.D.C. 501.

Holdings: Questions of subject matter jurisdiction are reviewed de novo by the Court. The finality of a judgment is not affected by a request for taxation of costs. Because the bill of costs did not stay the finality of the judgment, the Court concluded it did not come within the purview of W.R.C.P. 6(c)(2). The judgment in Appellant’s case was final on the date it was entered, no post-trial motions were filed to delay its finality and, pursuant to the express language of W.R.C.P. 58(c), the district court retained jurisdiction to decide the bill of costs.
The district court's decision is affirmed.

J. Kite delivered the opinion for the court.

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