Summary 2009 WY 140

Summary of Decision Issued November 12, 2009

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

Case Name: Zaloudek v. Zaloudek

Citation: 2009 WY 140

Docket Number: S-09-0016

Appeal from the District Court of Unita County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Defendant): William L. Combs, Combs Law Office, Evanston, Wyoming

Representing Appellee (Plaintiff): Richard J. Mulligan, Mulligan Law Office, Jackson, Wyoming; Heather Noble, Jackson, Wyoming

Issues: Whether the trial court abused its discretion in its divorce decree ordering an equitable division of the property.

Holdings: While the divorce was pending, Appellee sought permission from the district court to take some of the hay stored at the Evanston property to feed the two horses she was keeping. Appellant objected. After a hearing held by telephone, the district court denied Appellee’s request for permission to take the hay but, instead, ordered Appellant to pay for hay to be purchased from another source. Appellant filed a motion asking the district court to reconsider its ruling, claiming that the payment of money was relief that had not been sought by Appellee, and that the parties had presented no testimony or other evidence during the hearing to support the order. The district court apparently chose to deny Appellant’s motion to reconsider and, instead, issued the written order that had been prepared and submitted by Appellee. On appeal, Appellant claims that the district court’s decision was arbitrary and capricious, unsupported by the evidence, and contrary to law. The record does not support that assertion. In the motion, Appellee sought alternative forms of relief. First, she asked for permission to remove hay from the property. Alternatively, she requested payment for the costs of boarding the horses. The relief granted by the district court falls within this alternative request. Appellant had notice of this claim for relief and there was no error in the district court’s consideration of this issue.

In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children. The district court has discretion to determine what weight should be given each of these individual factors, and to divide the property as appropriate to the individual circumstances of each case. The justness and fairness of a marital property division cannot be gauged with a simple comparison of the amount of property awarded to each party. Rather, the disposition should be performed with regard to the respective merits of the parties, the condition in which they will be left by the divorce, the party through whom the property was acquired, and the burdens imposed upon the property for the benefit of either party.

Although one statutory factor to be considered in dividing property in a divorce is the party through whom the property was acquired, a party is not automatically entitled to all of that property. Under Wyoming law, all marital property is subject to equitable division upon divorce. In the present action, Appellant was not entitled to a larger portion of the couple’s retirement assets just because he had earned more money than Appellee.

Appellant also asserts that some of the retirement assets were acquired before the marriage, and therefore not part of the marital estate. This argument has merit, but the difficulty is that neither party provided any evidence of the value of the retirement assets at that earlier date. The record suggests that the parties were unsuccessful in obtaining this evidence, even though subpoenas were issued to the asset managers. Without evidence of the value of the retirement assets at the earlier date, the district court had no basis for excluding the pre-marital portion from division. The district court’s refusal to speculate was not unreasonable, and was not an abuse of discretion.

The divorce decree in the present action reflects that the district court considered the statutory factors. It found that “most of the assets have been acquired during the marriage and . . . that those assets have appreciated during the marriage.” The court determined that “an equitable distribution merits an equal distribution of the parties’ assets and liabilities.” It further found that “an equal division of the parties’ assets would adequately allow each party to have sufficient income with which to support his or her individual living expenses.” These findings and conclusions are sufficiently supported by the evidence of record, and are not so unfair or inequitable as to constitute an abuse of discretion.

Appellant also asserts that the district court did not follow proper procedure when it entered the divorce decree. He complains that the district court adopted the proposed divorce decree submitted by Appellee, without allowing Appellant an opportunity to approve the order as to form or to assert any objections. Appellant claims that this violated W.R.C.P. 58(a). W.R.C.P. 58(a) is the procedure used when the judge orally announces a decision and asks one of the parties, usually the prevailing party, to draft an order reflecting that decision. In the present action, the district court did not announce a decision at the end of the trial, and did not ask one of the parties to submit an order. Instead, it directed both parties to submit proposed divorce decrees. Both parties did so. In this way, the district court was reminded or made aware of the positions, arguments, and objections of both parties. Thus, there was no violation of W.R.C.P. 58(a).

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/yavp38u .

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