Summary 2006 WY 111

Summary of decision issued August 31, 2006

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Case Name: Seherr-Thoss v. Seherr-Thoss

Citation: 2006 WY 111

Docket Number: 05-237 & 06-10

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

Representing Appellant (Plaintiff): Kenneth S. Cohen, Cohen Law Office, Jackson, Wyoming.

Representing Appellee (Defendant): Bret F. King, King and King, Jackson, Wyoming.

Date of Decision: August 31, 2006

Issues: Case No. 05-237:
Whether the district court erroneously held that a Premarital Prenuptial Agreement was enforceable, in spite of its finding that Appellee breached the Prenuptial Agreement by failing to make any of the annual $10,000 payments to Appellant required under the Prenuptial Agreement. Whether the district court erred when it ruled as to the provision which controlled the distribution of the proceeds from the sale of a house and that Appellant was not entitled to any portion of the sale proceeds. Whether the district court erred when it ruled that pursuant the Prenuptial Agreement, Appellant was entitled to four annual payments of $10,000 rather than five annual payments. Whether the district court erred when it held that the parties were married at least three years but less than four years, and that pursuant to the Prenuptial Agreement, Appellant was entitled to a lump sum payment of $40,000. Whether the district court erred when it held that Appellant was required to repay Appellee the sum of $20,000 based on her withdrawal of funds from joint accounts immediately prior to filing for divorce.
Case No. 06-10:
Whether the district court abused its discretion in awarding to Appellant less than half of the attorneys' fees incurred by her in the divorce proceeding under Wyo. Stat. 20-2-111.

Holdings:
Case No 05-237: In order to warrant termination or repudiation of a contract, a breach must be substantial and material. To determine whether a breach was substantial and material, the Wyoming Supreme Court has cited with approval Restatement (Second) Contracts § 241 (1981):
In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
In the present action, Appellant's argument presumes, without discussion or analysis, that Appellee's breach of the Prenuptial Agreement is substantial and material. As the commentary to § 237 of the Restatement (Second) of Contracts, which was relied upon by Appellant, makes clear: In determining whether a failure of performance is material, the circumstances listed in § 241 should be considered.
Failure to cite pertinent authority has long been a basis for summary affirmance of cases or issues by the Court. Thus, the Court declines to consider Appellant's arguments given her failure to fully evaluate the issue within the context of the applicable law.
When title to real estate is taken in the names of both spouses but only one spouse paid for it, a rebuttable presumption that a fifty percent interest intended as a gift to the non-paying spouse arises. The inquiry into whether or not the presumption of a gift has been rebutted is, by necessity, a factual one dependent upon the particular circumstances surrounding the conveyance. Appellant's contention that the provision of the Prenuptial Agreement which permitted transfers of property between the parties rather than the provision governing ownership of acquired property governed disposition of the proceeds from the sale of the house purchased wholly by funds supplied by the Appellant is predicated on her presumption that she was gifted a half-interest in it. The implication of the district court's ruling, however, is that it did not believe that Appellee intended the warranty deed to convey a gift and that the presumption had been overcome. The lack of specific findings by the court on the issue is regrettable but there is no indication in the record that any request was made pursuant W.R.C.P. 52(a) to place on record the circumstances and factors that were crucial to the determination. Review is also constrained by the deficient record in this case. It must be presumed that the court's decision is supported by competent evidence. In the absence of any basis upon which to review the factual determination that the presumption of a gift was rebutted, it cannot be concluded that there was an abuse of discretion by the district court in its disposition of the proceeds from the sale of the residence.
Pursuant to the Prenuptial Agreement, Appellee was required to pay Appellant "$10,000 per year for so long as the parties" were married to each other with the first payment being "made no later than December 30, 2000." The district court found that Appellee had failed to make any of the payments and ordered him to pay Appellant $10,000 each for the years 2000, 2001, 2002, and 2003, for a total of $40,000. Appellant contends that the district court misapplied the Prenuptial Agreement. She notes that the Prenuptial Agreement provides that the payment obligation continued "for so long as the parties are married." Since the divorce did not become effective until August 12, 2005, Appellant contends that she was entitled to payments for the years 2000, 2001, 2002, 2003, and 2004, along with a pro rata share for the partial year of 2005. However, the ordinary meaning to the term "year" is a twelve-month calendar period. If the parties had intended for pro rata payments, they could have so specified in the Prenuptial Agreement. They did not. Accordingly, Appellee's obligation does not encompass the partial year of marriage. Therefore, the district court's order that Appellee's obligation to Appellant under this provision of the Prenuptial Agreement is $40,000 is affirmed.
The Prenuptial Agreement obligates Appellee to make a lump sum payment of varying amounts to Appellant depending on the length of the marriage "in the event of divorce within the first five years of marriage." The district court found that "the parties were married three years but less than four years" obligating Appellee to pay $40,000 under the terms of the provision. Appellant insists that the parties were married for four years but less than five, entitling her to $50,000 payable in "two equal installments over a period of two years." The language of the provision in question, is unambiguous. It provides that if the parties were to divorce within the first five years of marriage Appellant was entitled to a lump sum payment from Appellee. The amount of Appellee's obligation increases in increments of $10,000 for each year of marriage up to a maximum of $50,000 if the parties have been married at least four but less than five years. As previously noted, the parties were married on October 1, 2000, and divorced on August 12, 2005. By the plain terms of the Prenuptial Agreement, Appellee owes Appellant $50,000. Applying the unambiguous terms of the provision then, the district court erred when it awarded Appellant $40,000; the parties were married for at least four and less than five years and, accordingly, Appellant should have been awarded $50,000.
The disposition of marital property, including funds in joint accounts, is within the district court's discretion and a just and equitable distribution is as likely as not to be unequal. In this case, the Prenuptial Agreement provided that each party was entitled to their separate property. It is obviously a fact-intensive inquiry to determine the extent to which the funds in the parties' joint accounts were joint property or the personal property of Appellee or Appellant. Merely because the funds were in a joint account is not determinative of that inquiry. To the extent that Appellant's argument is predicated on a claim of a gift, that too is a factual inquiry. This claim cannot be reviewed because the lack of a transcript of the evidentiary hearing. It must be presumed that the evidence supports the district court's decision.
Case No. 06-10: There is no transcript of the hearing on Appellant's motion for attorneys' fees in the record. Appellant supported her representation by citing to the district court's Docket Index. There is a difference, however, between the Docket Index, which identifies all documents made part of the record during the lower court proceedings and the record transmitted to this Court in an appeal. Compare W.R.A.P. 3.01(a) and (b). The latter consists only of those parts of the district court record designated by the parties. Appellant's Designation of Record does not include the hearing transcript. Appellant, as the appealing party, bore the burden of providing this Court with a complete record on which it could base a decision. That duty encompasses designation for transmission to this Court of all parts of the district court record pertinent to the issues raised. Without a transcript, we cannot review the factual basis for the district court's discretionary ruling.

Case No. 05-237, the district court's order that Appellee was to pay Appellant $40,000 pursuant to the Prenuptial Agreement is reversed and remanded for the amount owed to be increased $10,000 for a total amount of $50,000. The district court's order in that case is affirmed in all other respects. The district court's order in Case No. 06-10 is summarily affirmed.

J. Hill delivered the opinion for the court.

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