Summary of Decision November 30, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: King v. Board of County Commissioners of the County of Fremont

Citation: 2010 WY 154

Docket Number: S-09-0227, S-09-0228

URL: http://tinyurl.com/2ue3tkh

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge

Representing Appellant (Plaintiffs and Intervening Plaintiff): Jason A. Neville and Keith J. Dodson, Williams, Porter, Day & Neville, Casper, WY for Edward & Janice King; and Steven F. Freudenthal of Freudenthal, Salzburg & Bonds, Cheyenne, WY for Hanson’s North Fork Ranch.

Representing Appellee (Defendant): Jodi A. Darrough, Deputy Fremont County Attorney, Lander, WY.

Date of Decision: November 30, 2010

Facts: These appeals arise from the district court’s determination of the status of a county road which fell under the jurisdiction of the Appellee. The Appellants alleged that the records concerning the existence of that road were not properly recorded or stored by Fremont County and, hence, the road had never been created as contemplated by the governing statutes. In addition, Appellants contended the road had been vacated or abandoned. As a matter of undisputed fact and law, the district court held the road had been created and further, that as a matter of law it still existed because it had not forthrightly and officially been vacated or abandoned.


Issues: Whether Appellants filed a timely notice of appeal after the entry of the partial summary judgment order. Whether the district court’s entry of summary judgment based upon its finding that the road was properly established was in error. Whether the district court erred when it dismissed the case in reliance on State ex rel. State Highway Commission v. Meeker, 294 P.2d 603 (Wyo. 1956). Whether Appellants were bona fide subsequent purchasers, and thus purchased their land without the road clouding their title. Whether Appellants filed a timely notice of appeal after the entry of that order.

Holdings: W.R.C.P. 54(b) allows a district court to certify orders that adjudicate fewer than all claims upon an express determination that there is no just reason for delay and upon the express direction for the entry of judgment. No such determination was sought or granted in this case. However, Appellants were not required to appeal the partial summary judgment until the remaining issues were decided.

The statutes in effect when the road was created are found in Wyoming Compiled Statutes 1910, §§ 2513-2531. Section 2523 requires that a survey and record of the road “be filed in the office of the county clerk.” The Appellants contend that this step was not perfected, although the documentation required to be assembled by the governing statutes was in the possession of Fremont County at the time this action arose, as well as at all times in the interim between 1913 and the present day. However, it is not disputed that the grantor/grantee index did not provide those examining property titles any information about the road. Further, unless a title examiner inquired of a county clerk employee about the existence and actual location of the records pertaining to county roads, then whether or not a particular parcel of land was burdened by a county road would not be evident. It is this flaw that is the mainstay of the Appellants’ contentions herein and on that basis, it is contended that the road should be declared not to have ever come into existence.

It is not the physical location of these records that create the ultimate issue in this case but whether or not they were made of record for purposes of providing constructive notice. The district court relied in significant part on the case of Lakewood v. Mavromatis, 817 P.2d 90 (Colo. 1991) in deciding to grant a partial summary judgment in favor of the Commission with respect to the validity, ab initio, of the road. Although that case differs from the present case on the facts because a road was never built on the tract of land in question, the Colorado Supreme Court concluded that placing the road petition and incorporated plat in the road book in the office of the county clerk was adequate to dedicate the tract as a public highway, but it did not provide constructive notice to bona fide subsequent purchasers of the governmental entity’s interest in the disputed parcel of land. Based on that case, the district court concluded that the remaining issues would be required to be tried; to wit: (1) whether or not Appellants had actual notice of the road and (2) whether or not they are bona fide subsequent purchasers of the property they now own that may be subject to the Commission’s interest in the road. The district court concluded that the Wyoming Legislature also intended to require the recording of the road petition in compliance with the Wyoming Recording Act. However, failure to do so did not void the established road, especially with regard to the parties in the initial road proceedings because they had actual notice of the road. The district court indicated that this case was complicated because it was unclear if the road was ever established on the ground. Moreover, while there was evidence that at least a faint “track” of the road could be found on the ground for most of its distance, it had been fenced over in places, it had been washed out in places, it was blocked by vegetation in places, a wellhead was in its course, and a building had been placed along its course so that it disappeared into, and then re-emerged on the other end of, the building.
However, based on the totality of the circumstances, the district court will be affirmed in its decision that there were no genuine issues of material fact as to whether the road had been created in the first instance.

The Appellee Commission subsequently filed a motion to dismiss on the basis that once a county road has been created, it can only be extinguished through formal vacation proceedings. Prior to a trial, the district court reconsidered its previous ruling in light of the case State ex rel. State Highway Comm’n v. Meeker, 294 P.2d 603 (Wyo. 1956). The failure to record an instrument which is not required to be recorded does not affect or vitiate the instrument as to anyone, and it is valid not only between the parties thereto, but also to subsequent purchasers and encumbrancers. Until 1953 Wyoming had no statute which required the transfer of title by eminent domain to be recorded in the ordinary and regular books of record kept for the transfer of property by conveyances. Based on that case, the wording of the statutes in place in 1913, the fact that the road had never been “formally vacated,” and the circumstance that the County Road Book gave constructive notice of the road had inquiry been made of the county clerk, the district court held that the motion to dismiss should be granted.

The heart of the controversy in this case lies in the tension between Wyoming’s long-standing “unrecorded conveyance” statute and those statutes that deal with the creation of county roads. The records of the road in question were maintained in the manner mandated by these statutes. Eventually, the “recorded” documents with respect to county roads were moved to the county planning office and later to the county roads/transportation department. However, at all times the records were available to the public had inquiry been made about them to the county clerk or to other county departments. Moreover, county roads, cannot be vacated except by official action of the county commissioners of a county. Appellants participated in an effort to vacate the road, but that was unsuccessful. Wyo. Stat. 24-3-201 et seq. authorize a county to remedy a problem such as the one that has arisen in the present action. However, these statutes do not mandate action on the part of counties and are not determinative of the issues raised herein. The existing statutes, as well as the cases interpreting them over the years, track closely with common law principles that have long played a key role in issues such as this. Two of the most important of those are: “Once a road, always a road;” and, where a road is created by a statutory procedure such as that in play here, such a road cannot be abandoned, vacated, or disestablished without there being clear action on the part of the governmental entity that created the road to vacate, abandon, or disestablish it. For these reasons, the district court was correct that there was no genuine issue of material fact as to whether the road had been created. In addition, the road has not been vacated, abandoned, or disestablished by Fremont County and, therefore, it is still a county road as a matter of law.

The district court’s partial summary judgment order is affirmed. The district court’s order dismissing the further claims of Appellants is also affirmed.

J. Hill delivered the opinion for the court.

J. Burke files an opinion concurring in part and dissenting in part, in which J. Voigt joins. I respectfully dissent from that part of the majority’s decision affirming the dismissal of the Appellants’ claims in reliance on State Highway Comm’n v. Meeker, 75 Wyo. 210, 294 P.2d 603 (Wyo. 1956). Mr. Meeker challenged the county’s ownership of a highway right-of-way across his property on the basis that there was “no instrument of record in the office of the county clerk showing the highway.” The right-of-way had been acquired through eminent domain, however, and the Court found “no statute which required the transfer of title by eminent domain to be recorded” in the public record. The Court said that “failure to record an instrument which is not required to be recorded does not affect or vitiate the instrument as to anyone, and it is valid not only between the parties thereto, but also to subsequent purchasers.” “Hence,” the Court wrote, “it is quite clear that the title the State acquired under the condemnation proceedings in 1950 is valid and good against any subsequent purchaser of the same property.” However, Meeker detours from a long line of Wyoming cases emphasizing that county road easements must be placed on the public record. These cases establish that the Wyoming Legislature and the Court have consistently, with the exception of Meeker, said that county roads must be placed on the public record.

This policy extends not to county roads only, but to all real property conveyances. “Public policy requires that subsequent purchasers be able to rely on the title shown in public records.” Applying Meeker to the case at hand, however, means that the Appellants cannot rely on their title as shown in the Fremont County Clerk’s property records. That seriously undermines “the purpose of our recording statutes, which entitle one to rely on public records and determine whether or not a certain property is subject to liens, prior encumbrances or other outstanding claims.

The Court in Meeker indicated that the proceedings of the Board of County Commissioners gave Mr. Meeker constructive notice of the Commissioners’ decision to acquire the highway right-of-way. As stated in a droll but persuasive argument offered by Appellants in the present action, if the ruling in Meeker is controlling in this case, then every conveyance of land would have to be accompanied by a review of all proceedings of the county commissioners back to 1890.

Because of its anomalous nature and impracticable result, the decision in Meeker should be limited to its peculiar facts. By the time of trial in the Meeker case, “construction of the highway was commenced and substantially completed. That is not true of the road in the present action. In addition, Mr. Meeker “was in possession of the land in question as lessee during all of the time the eminent domain proceedings were taking place and must have had notice thereof.” Appellants were not in possession of the land in question in 1913 when the County Commissioners undertook to establish the road.

More significantly, Meeker is distinguishable on legal grounds. That decision rested on the Court’s finding “no statute which required the transfer of title by eminent domain to be recorded” in the public record. In the current case, there is at least one statute requiring the road easement to be recorded. In 1919, the Wyoming Legislature enacted a statute requiring Boards of County Commissioners, within their respective counties determine what if any such roads now or heretofore travelled but not heretofore officially established and recorded, are necessary or important for the public use as permanent roads, and to cause such roads to be recorded, or if need be laid out, established and recorded, and all roads recorded as aforesaid, shall be highways. No other roads shall be highways unless and until lawfully established as such by official authority. The County Commissioners of Fremont County undertook to establish the road in question, but failed to record it. This statute imposed upon them the duty of rectifying that failure. Notably, this statute makes no distinction between roads acquired by eminent domain and those acquired by other means. Because this statute required the easement in question to be recorded, the ruling in Meeker is not controlling here.

Accordingly, the district court’s decision to dismiss the claims raised by the Appellants should be reversed and remanded to the district court with instructions to proceed to trial on the question of whether the Appellants are bona fide subsequent purchasers for value who took title to their properties without notice of the road easement.

Summary 2010 WY 153

Summary of Order November 24, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Barnes v. State

Citation: 2010 WY 153

Docket Number: S-10-0079

URL: http://tinyurl.com/375beah

Date of Order: November 24, 2010

ORDER AFFIRMING THE DISTRICT COURT’S ORDER OF DISMISSAL

This matter came before the Court upon Appellant’s pro se “Motion of Response. This is Appellant’s appeal from an “Order of Dismissal,” wherein the district court dismissed, without prejudice, a burglary charge. Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738 (1967). Following a careful review of the record and the “Anders briefs” submitted by counsel, this Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order provided that the District Court’s “Order of Dismissal” and its “Order Denying Objections and Motions” would be affirmed unless, on or before November 12, 2010, the Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. In response to the Court’s “Order Granting Permission for Court Appointed Counsel to Withdraw,” Appellant filed his “Motion of Response.” After a careful review of that motion, the Court finds that Appellant has not established that the captioned appeal is not frivolous. The Court finds the motion devoid of cogent argument and citation to pertinent authority. Therefore, the Court finds that the District Court’s “Order of Dismissal” and its “Order Denying Objections and Motions” should be affirmed. It is, therefore,

ORDERED that any requests for relief contained in the “Motion of Response,” be, and hereby are, denied; and it is further ORDERED that the District Court’s “Order of Dismissal” and its “Order Denying Objections and Motions” be, and the same hereby are, affirmed.

BY THE COURT

Summary 2010 Wy 152

Summary of Decision November 23, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Bailey v. State, ex rel. Wyoming Workers’ Safety and Compensation Division

Citation: 2010 WY 152

Docket Number: S-10-0051

URL: http://tiny.cc/3p8mc

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

Representing Appellant (Petitioner): Stephenson D. Emery of Williams, Porter, Day & Neville, Casper, Wyoming

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Date of Decision: November 23, 2010

Facts: Appellant appeals from the district court’s order affirming the Office of Administrative Hearing’s (OAH) denial of her claim for temporary total disability (TTD) benefits.

Issues: Whether the Office of Administrative Hearings (OAH) acted arbitrarily and capriciously, and contrary to law, in denying payment of temporary total disability benefits (“TTD”) to Appellant, even though she was “temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which she was reasonably suited by experience or training. Wyo. Stat. §27-14-102(a)(xviii).

Holdings: The OAH’s decision denying TTD benefits did not focus on whether Appellant met the definition of TTD under Wyo. Stat. 27-14-102(a)(xviii) (LexisNexis 2009), i.e., whether she was “temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which she was reasonably suited by experience or training.” Instead, it ruled that the procedural deficiencies in her application for benefits warranted denial of her claim.

The OAH’s decision denying TTD benefits did not focus on whether Appellant met the definition of TTD under Wyo. Stat. 27-14-102(a)(xviii) (LexisNexis 2009), i.e., whether she was “temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which she was reasonably suited by experience or training.” Instead, it ruled that the procedural deficiencies in her application for benefits warranted denial of her claim. The hearing examiner articulated two independent grounds for denying Appellant TTD benefits: 1) there was no evidence that she submitted her application for TTD benefits to the Division; and 2) her application did not include a proper certification from her health care provider. The district court determined that the record did not contain sufficient evidence to support the hearing examiner’s ruling on the first basis, but the OAH decision on the second matter was correct and dispositive.

The claimant has the burden of proving the essential elements of her claim by a preponderance of the evidence. The claimant also must establish her compliance with the rules and procedures set forth in the Wyoming Worker’s Compensation Act. Wyo. Stat. 27-14-404(d) and 501(b) and (e) and the Division Rule require certification by the treating health care provider that the worker is temporarily and totally disabled. The Division Rule mandates that the application for benefits be submitted on a form provided by the Division and the health care provider specify the reasons for the disability and the expected period of disability. Appellant filled out the employee’s section of her application for TTD benefits and signed and dated it. The health care provider’s certification was not completed or signed by her doctor, although Appellant filled in some of that section herself. Appellant claims that, despite the fact the Division’s form was not completed by her physician, the legal requirements were satisfied by a combination of the employee part of her application for TTD benefits and a signed Return to Work/School Statement indicating that Appellant’s work status was “No work unable to work until seen by an orthopedic doctor.” However, this document was not the form provided by the Division for TTD certification and, consequently, did not meet the requirement. It did not include a certification that Appellant was temporarily totally disabled under Wyoming law or set forth the reasons for the disability or expected period of disability as required by the Division Rule and Wyo. Stat. 27-14-404(d) and 501(b). Moreover, it did not provide detailed information about the health care provider or Appellant’s diagnosis, treatment plan, or prognosis. Given that Appellant did not fulfill the statutory or regulatory requirements for health care provider certification, she was not entitled to TTD benefits.

Appellant claims that we should overlook the procedural deficiencies and decide the case on its merits. In support of her assertion, she directs us to part of Wyo. Stat. 27-14-101(b) ( 2009), which provides that “benefit claims cases [should] be decided on their merits.” A review of the entire statutory section reveals that Appellant is taking that phrase out of context and misinterpreting the legislature’s intent. The language of this section indicates a clear intent to abrogate the common law rule that workers’ compensation laws were interpreted in favor of injured employees. The reference to deciding benefit claims cases “on their merits” was in the context of nullifying the historical liberal construction in favor of coverage. Contrary to Appellant’s assertion, there is nothing in the section indicating that the legislature intended that procedural deficiencies be overlooked simply because the claimant appears to meet the definition of TTD.

Appellant also claims that the Division cannot insist on strict compliance with the procedural requirements of the Wyoming Workers’ Compensation Act because it did not fulfill its procedural responsibilities. In particular, she claims the Division violated Wyo. Stat. 27-14-601(d) by not telling her that she had not filed the proper form for TTD benefits and § 27-14-404(k) by failing to advise her that she was entitled to receive interim TTD benefits. Wyo. Stat. 27-14-601(d) provision does not require the Division to inform the claimant that she filed an incorrect form or did not fill it out correctly. It simply requires the Division to make a determination as to whether the claimant is eligible for benefits and provide notice of that determination to the interested parties.
Wyo. Stat. 27-14-404(k) provides for interim TTD benefits if the employer objects to a division determination that an injury is compensable and the employee’s health care provider has certified the employee as temporarily totally disabled . That provision does not apply in this case because: 1) the Division originally determined Appellant’s injury was not compensable; 2) she does not identify any evidence in the record indicating that, once the Division determined her injury was compensable, the employer objected; and 3) as we stated earlier, her health care provider did not properly certify that she was temporarily totally disabled under Wyoming law. Moreover, Appellant does not direct us to any legal authority stating that the Division is obligated to notify her of all potential benefits.

Appellant did not comply with the statutory and regulatory requirements for filing an application of TTD benefits. Her failure to file a proper health care provider’s certification was fatal to her claim. The OAH correctly denied her claim for TTD benefits.

Affirmed.

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

Summary 2010 WY 151

Summary of Decision November 23, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Kelly v. Kilts

Citation: 2010 WY 151

Docket Number: S-10-0090

URL: http://tiny.cc/2bqqi

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

Representing Appellant (Defendant): Richard H. Peek, Casper, Wyoming.

Representing Appellee (Plaintiff): Rex O. Arney and Carrie L. Shaw of Brown, Drew & Massey, Sheridan, Wyoming.

Date of Decision: November 23, 2010

Facts: Roxie Carol Kelly filed a complaint for divorce from Appellant. Appellant filed an answer in which he stated that he did not object to the divorce being awarded. Six days later, Mrs. Kelly filed a motion requesting an emergency hearing, alleging she was in the hospital in critical condition and wanted the divorce finalized before she died. After efforts to schedule a hearing with Appellant’s attorney were unsuccessful, the district court entered a divorce decree awarding the divorce and retaining jurisdiction to equitably divide the marital estate at a later date. Appellant filed a motion to set aside the decree, which the district court denied.

Issues: Whether the trial court committed reversible error when it prepared and entered the Decree of Divorce, without a hearing and notice to the parties in violation of W.R.Civ.P. Rules 12(c), 56(c), and 6(c), and in violation of Appellant’s right to due process.

Holdings: Under W.R.Civ.P. 6(c)(2), the court may, in its discretion, determine such motions without a hearing, except for those motions which will determine the final rights of a party in an action. In the present action, the motion for emergency hearing to award Mrs. Kelly a divorce in proceedings in which both parties had agreed that a divorce was appropriate and should be awarded to Mrs. Kelly as the filing party was not a motion that would determine the final rights of either party. The final rights of the parties were left to be determined at a later date. Under these circumstances, the district court properly exercised its discretion to grant the divorce without a hearing.

The resolution of Appellant’s Rule 6 argument applies with equal force to his argument that W.R.Civ.P. Rule 12(c) converted the action into a summary judgment action. Rule 6(c)(2) gives district courts the discretion to determine motions without a hearing unless the motion will determine the final rights of the parties. No one disputed in this case that the district court should enter a decree dissolving the marriage. The only matter for the district court to decide was how the marital property should be divided, which was left for a later hearing. Once Mrs. Kelly filed her complaint for divorce, nothing Appellant submitted would have changed the outcome with respect to dissolution of the marriage. Had there been a hearing, he could not have appeared and prevented the court from awarding a divorce. At most, he could have withdrawn his consent to awarding her the divorce and presented reasons why the divorce should have been awarded to him, which would have led to the same result—dissolution of the marriage. The district court did not err in granting the divorce without a hearing.

Turning to Rule 56 specifically, Mrs. Kelly was entitled after the expiration of twenty days to move for summary judgment on her complaint for divorce with or without supporting affidavits. The decree accurately states that she filed her motion for emergency hearing after expiration of twenty days from commencement of the action. There is no contention that she did not properly serve Appellant with the motion. Given that the parties agreed a divorce should be granted and that no genuine issue as to any material fact existed on that matter, the district court properly rendered judgment dissolving the marriage. The district court properly directed in the decree that it would retain jurisdiction to divide the marital estate at a later date. As for Appellant’s contention that the district court should not have considered the statements in Mrs. Kelly’s motion that she was hospitalized and wanted the divorce finalized, there is no error under the circumstances of this case. The matter for the district court’s determination upon Mrs. Kelly’s motion was whether a divorce should be granted. The pleadings showed that no genuine issue as to any material fact existed and a divorce should be granted as a matter of law.

Appellant argues that entry of the decree deprived him of the opportunity to move to amend his answer to request that he, rather than Mrs. Kelly, be awarded the divorce. Citing W.R.C.P. 15(a), he asserts that he was entitled to amend his answer with leave of court, which “shall be freely given.” In entering the decree without a hearing, he contends, the district court deprived him of the right to amend. In presenting this argument, Appellant makes no claim that allowing the amendment and granting him the divorce would have led to a different result in the property division. In fact, Appellant did not appeal the district court’s order dividing the property. Absent an assertion that the failure to allow the amendment and award him the divorce somehow prejudiced him in the property division, any Rule 15 error was harmless.

Appellant also asserts the district court denied him his right to due process when it entered the decree without affording him the opportunity to be heard. Appellant maintains he had a protected property interest in his rights of inheritance as Mrs. Kelly’s surviving spouse under Wyo. Stat. 2-4-101(a)(ii) (2009) and to a property allowance under Wyo. Stat. 2-7-501 (2009). By entering a divorce decree without affording him sufficient notice or an opportunity to be heard, Appellant contends the district court interfered with his protected property interest in an impermissible way. But for the entry of the decree, he asserts, the divorce action would have terminated upon Mrs. Kelly’s death and he, as the surviving spouse, would have inherited the property. The fallacy in Appellant’s argument is that, once the complaint for divorce was filed alleging irreconcilable differences in the marital relationship, he had no right, constitutional or otherwise, to remain married to Mrs. Kelly. There was no question that the parties wanted the marriage dissolved. To reiterate, at the time the district court entered the decree, Appellant had answered the divorce complaint by admitting a divorce was in order and asking the court to enter an order granting it to Mrs. Kelly. It was not until after the district court entered the decree in accordance with the parties’ requests that Appellant objected to its entry. Had the district court not entered the decree as requested, and had Mrs. Kelly not become fatally ill, the matter would have proceeded to hearing and the district court would have granted the divorce and divided the property equitably between the parties. The only difference would have been that Mrs. Kelly, rather than her personal representative, would have presented her case as to how the property should be divided. Absent an allegation that awarding Mrs. Kelly the divorce somehow prejudiced Appellant in the property division, his property interest was not affected in an impermissible way when the district court entered the divorce decree dissolving the marriage and set the property division hearing for a later date.

Appellant further contends the district court acted improperly when, without a hearing, it bifurcated the proceedings by granting the divorce and retaining jurisdiction to later divide the property. Wyoming does not have a statutory provision expressly authorizing courts to grant a divorce in one proceeding and determine an equitable division of the marital property in a subsequent proceeding. However, the trial of issues separately is well accepted and W.R.Civ.P. 56(c) and (d) expressly contemplate the rendering of judgment as a matter of law on some issues and a later trial on any remaining factual issues. There was no error in the district court’s entry of the divorce decree and later determination dividing the property.

Under these circumstances the divorce decree is Affirmed.

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

Summary 2010 WY 159

Summary of Decision November 22, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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. State

Citation: 2010 WY 150

Docket Number: S-09-0185

URL: http://tinyurl.com/32pm3lh

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Date of Decision: November 22, 2010

Facts: Appellant was convicted after a jury trial of one count of second degree sexual abuse of a minor and sentenced to three to eight years in prison. He seeks reversal of that conviction on the basis of prosecutorial misconduct.

Issues: Whether Appellant was denied due process of law by the prosecutor’s misconduct in pursuing a charge she knew was not supported by any evidence.

Holdings: In addressing a claim of prosecutorial misconduct, the focus is on the prejudicial effect of the misconduct. When reviewing a claim of prosecutorial misconduct, the entire record must be considered. In the present action, Appellant insists that reversible error occurred when the prosecutor pursued one of the three counts for which he was charged, a charge he claims the prosecutor clearly knew was not supported by any evidence. He contends that the prosecutor’s actions violated several rules of professional conduct and resulted in a denial of his due process right to a fair trial. The State counters that the prosecutor had a reasonable belief that some incriminating evidence existed to support the charge – the victim’s initial statements to police – and, therefore, did not violate her ethical duties by pursuing it.

Applying the legal principles of prosecutorial misconduct, the court could not conclude that reversible error occurred in this instance. First, it was not persuaded under the facts of this case that the prosecutor violated her ethical responsibilities by prosecuting the charge. More importantly, a review of the entire record does not show that the prosecutor’s pursuit of that charge, even if deemed improper, resulted in substantial prejudice amounting to the denial of a fair trial. The prosecutor ultimately dismissed the charge, and the jury was told of its dismissal before the second day of trial. After that, there was only minimal reference to the facts relating to that charge at trial. Most importantly, the evidence of Appellant’s guilt on the charge for which he was convicted was quite strong. Considering the strength of the evidence in conjunction with what transpired at trial, the original inclusion of the charge in question did not have a deleterious effect on the jury’s verdict. It cannot be concluded that a reasonable possibility exists that the exclusion of that charge would have led to a more favorable verdict.

Affirmed.

J. Golden delivered the opinion for the court.

Summary 2010 WY 149

Summary of Decision November 18, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Willis v. Davis

Citation: 2010 WY 149

Docket Number: S-10-0066

URL: http://tinyurl.com/264plpa

Appeal from the District Court of Park County, Honorable Steven R. Cranfill, Judge

Representing Appellant (Defendant): Alex H. Sitz III of Meinecke & Sitz, Cody, Wyoming

Representing Appellee (Plaintiff): Matthew D. Winslow of Keegan & Winslow, , Cody, Wyoming.

Date of Decision: November 18, 2010

Facts: Appellee Father and Appellee Mother were divorced by decree awarding Father primary physical custody of the children and giving Mother liberal visitation. A year later, Father filed a motion for an order requiring Mother to show cause why she should not be held in contempt for violating provisions of the decree. Mother responded with her own motion for an order requiring Father to show cause why he should not be held in contempt for decree violations. In her motion, Mother also requested custody modification. After a hearing, the district court entered an order declining to hold either party in contempt and denying Mother’s request for custody modification. Mother did not appeal from that order. Nine days later, Mother filed a motion to modify custody. Father moved to dismiss arguing that the motion was barred by the doctrine of res judicata because the district court had just heard and ruled on a request by Mother for custody modification. The district court granted the motion to dismiss.


Issues: Whether the district court erred when it applied the doctrine of res judicata to her Motion to Modify Custody.


Holdings: Four factors must exist for res judicata to apply: 1) the parties must be identical; 2) the subject matter must be identical; 3) the issues must be identical and relate to the same subject matter; and 4) the capacities of the persons must be identical in reference to both the subject matter and the issues between them. As a general rule the doctrine of res judicata applies to divorce decrees. However, Wyoming law recognizes that custody modification is sometimes necessary. Thus, a district court in this state that enters a custody order in a divorce proceeding has continuing subject matter jurisdiction to enforce or modify custody upon petition by either parent. The party seeking to modify custody bears the burden of establishing that a material change in circumstances has occurred since the entry of the previous custody determination and that the modification would be in the best interests of the children.

In the present case, in Mother’s response to Father’s supplement to motion for order to show cause, filed five months before the hearing, Mother prayed for an order requiring Father to show why he should not be held in contempt and “for a modification of custody.” The record, therefore, is clear that Mother requested custody modification, thereby placing the matter at issue. The record is also clear that the district court considered Mother’s custody modification request to be at issue during the contempt proceedings. Given Mother’s request for custody modification and the district court’s ruling on her request, there is no question the matter was raised and decided at the prior hearing. To warrant another hearing on the issue, Mother had to allege that a material change in circumstances occurred after the entry of the previous order. Mother’s later motion does not specifically make that allegation. Rather, it appears to allege a material change of circumstances since the entry of the divorce decree. Although the allegations Mother made against Father in the more recent motion were different from those she presented in her earlier motions, there is nothing in the record indicating these were new allegations that arose after the district court’s ruling. Because the record submitted to the Court does not include a hearing transcript or another statement of the evidence presented at the hearing, there is no way of knowing what allegations and evidence Mother presented against Father in support of her initial custody modification request.
Mother, as the appellant, had the burden to submit a sufficient record from which the Court could decide the issues presented. Without a transcript of the hearing or other statement of evidence, the Court will accept the district court’s finding and conclusion that the issues Mother presented in her later motion were identical to those heard at the earlier hearing and decided by the prior order.

Mother also maintains the dismissal of her custody modification motion denied her due process because she did not have an adequate opportunity in the earlier hearing to present evidence and argument supporting her request for modification of custody. Any contention that Mother was denied due process in the earlier hearing properly should have been presented to this Court by way of appeal from the earlier order. Mother did not appeal from that order.

Affirmed.

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

Summary 2010 WY 148

Summary of Decision November 17, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Adelizzi v. Stratton

Citation: 2010 WY 148

Docket Number: S-09-0257

URL: http://tinyurl.com/2882hny

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

Representing Appellant (Plaintiffs): James R. Bell of Murane & Bostwick, Casper, Wyoming.

Representing Appellee (Defendants): Patrick J. Murphy of Williams, Porter, Day & Neville, Casper, Wyoming.

Date of Decision: November 17, 2010

Facts: This is an appeal from a summary judgment granted by the district court in favor of a real estate agent and broker who were sued by former clients for professional negligence for negligently and intentionally failing to disclose that the house they were purchasing was subject to flooding.

Issues: When did the limitation period for professional negligence begin to run under Wyo. Stat. 1-3-107 (2009)? Whether the district court correctly concluded that neither exception to the commencement of the limitation period found in Wyo. Stat. 1-3-107(a)(i) is applicable given the undisputed facts of this case.


Holdings: First, statutory construction is a matter of law; second, it is an attempt to seek legislative intent; third, the court will construe a statute only if it is ambiguous, with the question of ambiguity being a question of law; and fourth, a statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. In addition, a basic tenet of statutory construction is that omission of words from a statute is considered to be an intentional act by the legislature, and the court will not read words into a statute when the legislature has chosen not to include them. Finally, a closely related principle is that when the legislature specifically uses a word in one place, the court will not interpret that word into other places where it was not used.

Wyo. Stat. 1-3-107 is unambiguous. A plain reading of Wyo. Stat. 1-3-107 shows that the time for filing suit is governed by the date when the ‘act, error or omission’ occurs, rather than the date when the cause of action accrues. The concept of “when the cause of action accrues,” which defines every other period of limitation found in Wyo. Stat. 1-3-102 through 1-3-116 (2009), is not present in Wyo. Stat. 1-3-107. Under no theory of statutory construction are we free to interpret the words “within two years of the date of the alleged act, error or omission” to mean “within two years of the date when the cause of action accrues.” There could be no clearer example of the legislature using one set of words in some statutes and another set of words in the statute at issue. The statute of limitations began to run in this case on the last day that Appellees performed professional services for the Appellants under their agreement.

The period of limitations found in Wyo. Stat. 1-3-107 does not begin to run on the date of the alleged act, error or omission if the plaintiff can establish either that the alleged act, error or omission was not reasonably discoverable within the statutory two-year period or that the plaintiff failed to discover the alleged act, error or omission within the statutory two-year period, despite the exercise of due diligence. In the instant case, the alleged act, error or omission of Appellee was reasonably discoverable during the two-year period, and that fact that the Appellants did not discover the alleged act, error or omission was because they did not exercise due diligence. It was less than a month after the sale closed that the Appellants suffered the first of four flooding incidents that occurred during the two-year statutory period. It cannot reasonably be disputed that the Appellants had sufficient knowledge about the water problems and the non-disclosure of those water problems to make any professional negligence by Appellees reasonably discoverable well within the statutory two-year period.

The district court is affirmed because there are no genuine issues of material fact, and the appellees are entitled to judgment as a matter of law.



J. Voigt delivered the opinion for the court.

Summary 2010 WY 147

Summary of Decision November 16, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Zubrod v. CWCCapital Asset Management, LLC

Citation: 2010 WY 147

Docket Number: S-10-0075

URL: http://tinyurl.com/2db3eyh

W.R.A.P. 11 Certified Question from the United States Bankruptcy Court for the District of Wyoming The Honorable Peter J. McNiff, Judge

Representing Appellant (Plaintiff): Paul Hunter, Cheyenne, Wyoming

Representing Appellee (Defendant): Gregory C. Dyekman of Dray, Thomson & Dyekman, Cheyenne, Wyoming.

Date of Decision: November 16, 2010

Facts: Appellee received a money judgment against a party who owned 100% of the stock of one corporation and 50% of the stock of another and was the president of both corporations. Appellee had the sheriff attempt to serve two writs of execution on him as the corporations’ president, in order to levy against his shares of stock in both corporations to satisfy the money judgment. He was neither at his business office nor his home when service was attempted, so the sheriff served both writs on an attorney who was the registered agent for service of process for one of the corporations. At the time process was served him, he was the law partner of a second attorney, who was the registered agent for the other. Subsequently, there was a Chapter 11 reorganization bankruptcy filed, which was later converted to a Chapter 7 liquidation bankruptcy and a trustee was appointed. After Appellee objected to the bankrupt’s use of cash collateral, the trustee filed an adversary proceeding requesting that the bankruptcy court find that Appellee had failed to perfect its interest in the stock from either corporation. That filing led to this certification

Certified Questions: Is a security interest in corporate stock perfected, pursuant to Wyo. Stat. 1-19-103, when service of a writ of execution is made on the corporation’s registered agent because a corporate officer is not present when service is attempted? Is a security interest in corporate stock perfected, pursuant to Wyo. Stat. 1-19-103, when service of a writ of execution is made on a law partner of the corporation’s registered agent?

Holdings: The trustee contends that under Wyo. Stat, 1-19-103, service on the corporation’s registered agent was invalid because service on a registered agent is proper only where there is no corporate officer, not where one exists but simply is not present or cannot be found.

In interpreting the intent of Wyo. Stat. 1-19-103, the general rules of statutory construction must be applied. That is: A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. If it is determined that a statute is clear and unambiguous, the plain language of the statute will be given effect. In addition, several specific rules of statutory construction apply in the instant case. First, the general principles of statutory construction only if more than one reasonable interpretation exists. Second, the words contained in a statute must be considered in relation to one another. Third, a statute must not be given a meaning that will nullify its operation if it is susceptible of another interpretation. Fourth, a statute will not be interpreted in a manner that produces absurd results. Fifth, to determine whether a statute is ambiguous, the court will not be limited to the words found in that single statutory provision, but may consider all parts of the statutes on the same subject.

Applying these standards to the question at hand, Wyo. Stat. 1-19-103 is not ambiguous because it is susceptible to only one reasonable interpretation. The clear purpose of the statute, as evidenced by its title and by its language, is to provide the proper method of levying execution or attachment upon a corporation. The effect of such levy is to bind the shares of stock “from the time of the levy.” Wyo. Stat. 1-19-107 (2009). As evidenced by the battle in the instant case, the time of execution is critical when there is a contest among creditors over property seized. Given that context, it just would not be reasonable to interpret Wyo. Stat. 1-19-103 as allowing service upon a registered agent only in those rare cases where a corporation has no officers. Furthermore, the court cannot read into the statute a requirement that is not there; that is, a requirement that the sheriff exercise due diligence in attempting to locate a corporate officer before resorting to service upon the corporation’s registered agent. The only reasonable reading of the statute is that, where a corporate officer is not present to be served when service is attempted, service may be made upon the corporation’s agent for service of process.

Wyo. Stat. 17-16-501 (2009) requires that every corporation maintain a registered agent. The purpose of registered agent statutes is to require Wyoming corporations doing business within the state to maintain an office with a registered agent within the state and the jurisdiction of its courts where summons can be served and upon whom such service can be made. Wyo. Stat. 17-28-104 (LexisNexis 2009) and W.R.C.P. 4(d)(4) contemplate service upon a corporation via service upon its registered agent. A reading of Wyo. Stat. 1-19-103 that would limit service upon the agent to those cases where a corporation has no officers, or where the corporate officers have absconded, or are in hiding, or otherwise cannot be located, would nullify not only the general purpose of the registered agent statutes, but the purpose of the statutes designed to allow levy upon corporate stock.

The bankruptcy trustee contends that this interpretation of Wyo. Stat. 1-19-103 runs counter to the requirement in Wyo. Stat. Ann. 1-19-102 (2009) that a corporate officer, if there is one in the state, respond to the levy with “a certificate under his hand stating the number of rights or shares which the defendant holds . . .[,]” and that only if there is no officer within the state, the agent is to provide such information. However, the function of the registered agent is to accept service of process. It is the function of the corporate officers to respond substantively once the fact of service has been communicated to them. It is not illogical or unreasonable for the legislature to have committed the latter duty to the registered agent only in the absence of any corporate officer.

Wyo. Stat. 1-19-103 is also unambiguous in spelling out who may be served with a writ of execution. The statute allows for service of a writ of execution relating to corporations on one of three people: a corporate officer, and if a corporate officer is not present, a resident manager or resident agent. A law partner of a corporation’s registered agent is not the resident agent. Nothing in the phrase “resident agent” can be read to include anyone other than the resident agent. Because the right to subject corporate stock to levy and sale under execution is purely statutory, a levy which does not comply with the requirements of a state statute is invalid. Accordingly, a security interest in corporate stock cannot be perfected pursuant to Wyo. Stat. 1-19-103, 1-17-302, and 1-19-107 by serving a writ of execution on a law partner of a corporation’s registered agent.

This, a security interest in corporate stock is perfected, pursuant to Wyo. Stat. 1-19-103, where service of a writ of execution is made on the corporation’s registered agent because a corporate officer is not present when service is attempted. However, a security interest in corporate stock is not perfected, pursuant to Wyo. Stat. 1-19-103, where service of a writ of execution is made on a law partner of the corporation’s registered agent.

J. Voigt delivered the opinion for the court.

Summary 2010 Wy 146

Summary of Decision November 10, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Mullinax Concrete Service Co., Inc. v. Zowada

Citation: 2010 WY 146

Docket Number: S-0900237

URL: http://tinyurl.com/27td52j

Appeal from the District Court of County Sheridan County, Honorable Dan R. Price II, Judge

Representing Appellant (Petitioner): Anthony T. Wendtland of Wendtland & Wendtland, Sheridan, WY

Representing Appellee (Petitioners): Harlan Rasmussen, Sheridan, WY

Date of Decision: November 10, 2010

Facts: Appellant protested against a petition filed by the Appellees for the establishment of a private road across lands owned by Appellant. The Sheridan County Board of County Commissioners approved a road other than the one which historically had been used by the Appellees to access their property. That road crossed lands owned by Appellant. Both sides sought review of the Board’s decision in the district court. The district court reversed the Commission’s decision, in part, and remanded the case to the Commission for further proceedings. Appellant now seeks review in this Court of the district court’s order reversing the Commission’s order.

Issue: Whether there was sufficient evidence to support the Board’s location of a private road.


Holdings: Appellees had the initial burden to establish that their land had no outlet to a convenient public road. It is not questioned in this appeal that the Appellees met that burden. The standard of review requires the court to apply the pure form of the substantial evidence test. That is so because with respect to the question of which route was “the most reasonable and convenient route for the access” the governing statute does not assign the burden of proof on that point to either party. Indeed, Wyo. Stat. 24-9-101(g) provides that all affected parties may be heard, and the County Boarders’ decision must be supported by substantial evidence winnowed from those proceedings. Although this may not be true for all private road cases, here the arbitrary and capricious standard also applies because the Board rendered a decision which “cannot be easily categorized.”

The decision-making process must begin by examining the record on appeal to ascertain if substantial evidence exists to support an agency's conclusions. In the present action, there is not substantial evidence to support the Board’s conclusion that the route chosen was the most convenient and reasonable route, when the competing interests of Appellant and Appellees are considered side-by-side, rather than in an individualized and isolated consideration of their competing interests. From Appellant’s standpoint the route may be “wildly” superlative, but from Appellees’ standpoint it is all but confiscatory. A hallmark of private road cases has always been that convenience and reason should prevail in the establishment of private roads, but the route chosen does not have to be the most convenient and reasonable route possible. Thus, Board’s decision to select the chosen route must be reversed. The Board did not articulate a sound factual basis for choosing the route, which appears to be quite inconvenient for the Appellees due both to its length as well as the cost of creating much of the road on virgin pastureland. Moreover, there is a lack of evidence as to what its actual cost might be.

In addition to the lack of evidence to support selection of the route, the Board’s decision that Appellant was not entitled to any damages for that portion of the route, which crosses the land that Appellant purchased after the hearing was concluded, but before the Board reached its decision, was incorrect. The Board should have required a before and after values analysis. There is no evidence in the record on which to base such analysis, which in and of itself, amounts to a lack of substantial evidence and, arguably, makes the decision arbitrary and capricious. The Board disagreed with the Viewers and Appraisers assessment an alternative route was the most reasonable and convenient route. However, it appeared the Board based its decision on the conclusion that Appellant would be deprived of the right to use that location for its sediment pond. The Board did not address the Viewers’ and Appraisers’ other observations, including that the other route was the historical access, was by far the shortest, used an existing railroad crossing, involved crossing only one landowner, and was located on a boundary line. The Board’s failure to weigh these factors was error. Neither did the Board conduct an analysis of the facts relating to the sediment pond. First it should have made findings about the DEQ’s requirements for such a pond and the deadline, if there was one, for having it in place. The Board considered some other alternatives for Appellant’s storm water issues but concluded that these options were too expensive. However, it did not address the fact that the Viewers and Appraisers specifically stated that there were other places where the pond could be built. There was disputed evidence about this at the contested case hearing. One engineer testified that the pond could be placed elsewhere for approximately the same cost as constructing it at the proposed location, whereas Appellant testified that it could not be placed elsewhere without disrupting Appellant’s business operations. The Board did not resolve this dispute and does not appear to have considered this option at all. It was the Board’s duty as fact finder to assess the credibility of the witnesses, including that of the Viewers and Appraisers, and weigh the evidence to determine whether the pond could be constructed elsewhere and what the cost would be.

The Board did not make adequate findings of fact, comparing the relative costs and benefits of two alternatve routes. Therefore, the matter is remanded to the district court with directions that it modify its order remanding this matter to the Board as follows:

1. The Board need only compare the relative merits of the two proposed routes in light of the circumstances in which both of the parties will be left.
2. If the one route is ultimately chosen, the Board must fully consider why the greater costs of that road are justified. It must also obtain a before and after appraisal to consider in any award of damages to Appellant.
The Board may opt to take additional evidence in order to meet these requirements, but should be able to do so without the need to appoint new Viewers and Appraisers.

The order of the district court remanding to the Board for further proceedings, as modified above, is affirmed. This matter is remanded to the district court with directions that it further remand it to the Board for additional proceedings consistent with this opinion.


J. Voigt delivered the opinion for the court.

Summary 2010 WY 145

Summary of Decision November 9, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Lawson v. State

Citation: 2010 WY 145

Docket Number: S-09-0061, S-09-0209, S-10-0001

URL: http://tinyurl.com/2abehxn

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Date of Decision: November 9, 2010

Facts: A jury found Appellant guilty of possessing cocaine and methamphetamine with intent to deliver. He appeals, claiming the district court should have granted him a new trial because the prosecutor suppressed exculpatory evidence. He also claims the prosecutor engaged in misconduct by soliciting false testimony.

Issues: Whether the trial court improperly denied Appellant’s the new trial motion claiming Brady violations. Whether the prosecutor engaged in misconduct by eliciting false testimony.


Holdings: In order to establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material. Favorable evidence includes impeachment evidence. Brady also extends to evidence gathered by investigating officers but not actually known to the prosecutor. Brady imposes an affirmative duty on the prosecutor to learn of favorable evidence in the State’s control and divulge such evidence to the defendant. However, Brady does not automatically require a new trial whenever a combing of the prosecutor’s files after the trial discloses evidence possibly useful to the defense but not likely to have changed the verdict. A finding that the undisclosed evidence is material is required. Evidence is material under Brady only when a reasonable probability exists that the result of the proceeding would have been different had the evidence been disclosed.

Appellant has identified thirteen documents that the State did not disclose to him. The documents vary in kind but fall mostly into two categories: documents providing support for Appellant’s claim that he was not involved in drug activity and documents providing information regarding plea agreements he could have used to impeach the State’s witnesses.

However, certain of these documents were provided to the defense six weeks prior to trial, and as such, there was no Brady violation with respect to them. The essence of Brady is the discovery of information after the trial, which was known to the prosecution but unknown to the defense during the trial. Thus, where exculpatory evidence is discovered during the trial and defense counsel has the opportunity to use it in cross-examination, closing argument, or other parts of the defense case, there is not a due process violation.

All of the documents in question need be considered cumulatively to determine whether the prosecution’s failure to disclose them undermines the confidence in the outcome of the trial. The undisputed evidence showed Appellant lived in a house where significant drug activity was ongoing, all of the other residents, including Appellant’s girlfriend, were intimately involved with drugs, and drugs and drug paraphernalia were found in the room and under the bed where Appellant slept. Photographs the State introduced into evidence clearly showed a digital scale, two spoons and a white substance on a red entertainment center located in the bedroom occupied by Appellant. Other photographs showed Ziploc bags found between the mattress where Appellant slept and a chest at the end of the bed. The State also presented evidence that Appellant had direct involvement in drug trafficking. While the undisclosed evidence may have strengthened Appellant’s defense that he was not involved in the drug activity, the likelihood that it would have changed the jury’s verdict is remote. The photographs the State introduced into evidence and direct testimony were strong evidence of Appellant’s involvement. While some of the documents supported the inference that other parties may have been the principal participants in the drug activity and the primary focus of the investigation, they do not tend to prove that Appellant was not involved in drug activity. Given the circumstantial evidence that he lived in a home where drug activity was common place, and slept in a bedroom where drugs and drug paraphernalia were found hidden and in open view, the prosecution’s failure to disclose evidence supporting Appellant’s defense does not undermine the confidence in the verdict.

Additionally, there is no question the undisclosed evidence regarding plea agreements would have been useful to Appellant in for impeachment purpose. However, the defense challenged the witness’ credibility. The jury heard testimony about his history of using and selling drugs. He testified that he was addicted to drugs. He testified he had sold methamphetamine to different people probably forty to fifty times. He testified about his felony conviction for taking indecent liberties with a minor. He testified that his most recent arrest was for possession of, and possession with intent to deliver, methamphetamine. The record is also clear that during re-direct examination, the prosecutor solicited testimony from the witness that he did not know of any deal with the State with regard to the charges filed against him. However, the jury also heard him testify on cross-examination that he had a plea agreement with the State to plead guilty to the delivery count in exchange for the prosecutor’s agreement to dismiss the possession count and recommend probation. Thus, the jury heard evidence from which it could infer that the only witness directly implicating Appellant in the drug activity had received favorable treatment from the State for his admitted criminal conduct. Yet, the jury remained persuaded that Appellant was involved in drug trafficking. Given that the jury heard evidence from which it might have concluded that the witness was testifying falsely for his own benefit, the undisclosed evidence would not have provided important investigative leads or impeachment evidence to the defense, nor was it highly probative with respect to Appellant’s defense at trial such that it could very well have resulted in an acquittal.

In his second issue, Appellant contends the prosecutor committed misconduct when she solicited false testimony from a witness that there was no plea deal. Defense counsel did not object at trial to the prosecutor’s question or the witness’s response. In the absence of an objection, the claim is reviewed for plain error. In order to establish plain error, Appellant must show: 1) the alleged error clearly appears in the record; 2) the error transgressed an unequivocal rule of law in a clear and obvious way; and 3) the error adversely affected Appellant’s substantial right resulting in material prejudice to him.

The first prong of the plain error test is satisfied. The error Appellant alleges clearly appears in the record. The trial transcript reflects that the prosecutor solicited testimony from the witness that there was “no deal” concerning the charges against him when in fact a plea agreement existed in which the State dismissed one charge and recommended probation on the second charge in exchange for a guilty plea and testimony against Appellant. Turning to the second prong, deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. In light of the evidence the defense uncovered after the trial of a plea agreement including a condition that the witness agreed to provide testimony and the testimony of that witness that there was no deal that the prosecutor not only solicited but allowed it to go uncorrected, Appellant has shown that the error transgressed an unequivocal rule of law in a clear and obvious way. However, the State’s case against Appellant did not depend entirely on the witness’ testimony. The State had sufficient additional evidence to support the charges against Appellant and take the case to the jury. While the witness’ credibility was an important issue, and the prosecutor knowingly committed misconduct in soliciting and failing to correct the false testimony concerning his plea agreement, Appellant has not shown that it materially prejudiced him. In reaching this result, however, prosecutors are reminded that when they solicit false testimony or fail to disclose exculpatory evidence they not only fail in their duty and risk otherwise justifiable convictions, but expose themselves to the charge that they have violated Rule of Professional Conduct 3.8.

Affirmed.

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

J. Golden specially concurring. The three consolidated appeals should have be treated separately, with a focus on the issues appropriate to each appeal. I note that this is difficult because Lawson’s appellate brief does not treat the appeals separately. Appeal No. S-09-0061 is an appeal from the Judgment and Sentence of the district court. After reviewing Appellant’s brief, there was no argument presented that applied to the trial or other proceedings underlying that Judgment and Sentence. Therefore. Appeal No. S-09-0061 should be summarily affirmed. Appeal No. S-09-0209 arises from Appellant’s Motion for New Trial. As stated in the majority opinion, generally Appellant complained of certain exculpatory and impeachment evidence the State did not disclose before or during trial, as well as allegedly false testimony solicited by the prosecutor during trial. A review of Appellant’s appellate brief, therefore, reveals that his argument is directly related to the district court’s denial of this motion for a new trial. As such, the Court is required to engage in an analysis of the proceedings underlying that denial. The proceedings included a full evidentiary hearing on his motion, after which the district court found that no Brady violation had occurred and also that the prosecutor had not solicited false testimony. The review by the Court should be of the district court’s findings using the appropriate standards of review. Appeal No. S-10-0001 is from an order denying a second new trial motion based an alleged new Brady violation by the State. The district court held a full evidentiary hearing, after which it held that the newly discovered evidence brought to its attention did not meet the materiality or exculpatory requirements of Brady. His appellate brief addresses the newly discovered evidence that was at issue at this hearing. Therefore, there is at least one issue to be analyzed within the context of this appeal.

If each appeal were analyzed independently, the analysis would have been considerably different. Most importantly, different standards of review would have been be applied. However, in the end, my own review reaches the conclusion that that the ultimate result as determined by the majority opinion is correct.

Summary 2010 WY 144

Summary of Decision November 9, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Kruse v. Kruse

Citation: 2010 WY 144

Docket Number: S-10-0077

URL: http://tinyurl.com/23rhyqy

Appeal from the District Court of Niobrara County, Honorable Keith G. Kautz, Judge

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

Representing Appellee (Plaintiff): Edward A. Buchanan of Sawyer, Warren & Buchanan, Torrington, Wyoming.


Date of Decision: November 9, 2010

Facts: This is an appeal from the district court’s distribution in a divorce decree of two specific asset: (1) a brokerage account established after the marriage by husband in both names; and (2) a house owned by Husband before the marriage, but deeded to both parties after the marriage. The district court distributed the brokerage account to husband in its entirety because it had been established with funds inherited by him. The district court divided the value of the house between the parties.

Issues: Whether property separately reserved to a spouse by prenuptial agreement can be disregarded in considering where the parties will be left by a divorce. Where a prenuptial agreement states that pre-marriage property will be the separate property of each spouse, can the district court disregard the exclusivity of that provision by also treating the pre-marriage portion of marital property as separate property.


Holdings: There are no hard and fast rules governing property divisions. The district court’s exercise of discretion in distributing the property of divorcing parties is guided by Wyo. Stat. 20-2-114 (2009). There are no specific guidelines as to how much weight is given to each of the statutory factors; the trial court has the discretion to determine what weight should be given each individual factor. In the present action, most of the parties’ assets were controlled by a prenuptial agreement and were not before the district court for distribution. Only two assets were at issue, and there is nothing shocking about the way either asset was distributed. In distributing the brokerage account to husband, the district court merely emphasized one of the statutory factors while in distributing the value of the house, it emphasized another.

The second allegation is that the district court treated the brokerage account and the house as if they were assets governed by the prenuptial agreement. That is not true. As to the brokerage account, the district court found that “the account became ‘marital property’ under the terms of the antenuptial agreement,” and proceeded to distribute the account as part of the divorce. Similarly, the district court found the house to be “subject to equitable division as marital property.” The fact that the brokerage account and more than half of the value of the house were distributed to husband does not equate to treating them as assets governed by the prenuptial agreement.

The property distribution in this divorce will be affirmed because the district court did not abuse its discretion in giving more weight to certain statutory factors than it did to others, and because Wife has not shown the distribution of the two assets at issue to have been such as to shock the conscience of the court or to have been unreasonable under the circumstances.

J. Voigt delivered the opinion for the court.

Summary 2010 WY 143

Summary of Decision November 5, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: Kibbee v. First Interstate Bank, Sheridan Wyoming et al.

Citation: 2010 WY 143

Docket Number: S-10-0022

URL: Unavailable at this time

Appeal from the District Court of Sheridan County, Honorable Dan Spangler, Judge

Representing Appellant (Plaintiff): Patrick J. Crank of Speight, McCue & Crank, Cheyenne, Wyoming, and Greg L. Goddard and Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Appellee First Interstate Bank (Defendant): Tom C. Toner of Yonkee & Toner, Sheridan, Wyoming.

Representing Appellee YMCA and Other Beneficiaries (Defendant): Dennis M. Kirven and Timothy J. Kirven of Kirven & Kirven, Buffalo, Wyoming.

Representing Appellee Sharon K. de Lobo (Defendant): Kim D. Cannon of Davis & Cannon, Sheridan, Wyoming.

Representing Appellees Aurora Lobo and Joshua Kibbee Lobo (Defendant): Thomas M. Hogan of Hogan & Company Law Offices, Casper, Wyoming.

Date of Decision: November 5, 2010

Facts: Appellant appeals from the granting of multiple summary judgments arising out of a challenge by him to changes made to the estate plan of his step-mother. Appellant asserts that the documents that significantly modified the estate plan are invalid because his step-mother lacked the requisite mental capacity, that she was unduly influenced by her previously-estranged daughter, and that her daughter was also guilty of the tort of intentional interference with an inheritance expectancy.

Issues: Whether there are disputed questions of fact regarding the decedent’s mental capacity at the time she executed the documents in question. Whether there are disputed questions of fact regarding any activity by the decedent’s daughter unduly influencing the decedent. Whether the affidavits of expert witnesses should have been stricken for failure to attach the documents referenced therein and relied upon in reaching their conclusions. Whether there are disputed questions of fact regarding whether the decedent’s daughter was guilty of the tort of intentional interference with an inheritance expectancy

Holdings: Mental incompetency, which will defeat the trust, exists where a person is incapable of understanding and acting with discretion in ordinary affairs of life, or is incapable of understanding, in a reasonable manner, the nature and effect of the trust. Strictly speaking, the question presented in such a case is not necessarily whether the settlor was generally of sound mind, but whether he had sufficient mental capacity to understand the trust which he executed. In a trial setting, the party claiming that a document was executed by an individual without the requisite capacity has the burden to demonstrate such lack of capacity. However, in the context of summary judgment, the movant has the initial burden of making a prima facie showing of mental capacity. The record shows that in the present action, the evidence presented was sufficient to make a prima facie showing that the grantor had the mental capacity to execute the challenged documents.

Upon this showing, the burden shifted to Appellant to demonstrate, by clear and convincing evidence that the grantor lacked the requisite mental capacity – that is, that she did not understand in a reasonable manner the nature and effect of the act in which she was engaged. Appellant offered evidence that grantor’s signatures were weak and that shortly before the documents were signed she failed to recognize a family friend. Even viewing these facts presented to refute existence of mental capacity in the light most favorable to Appellant, it cannot be said that they are adequate to defeat the prima facie showing that grantor had the requisite capacity. Not only are the facts presented explained and refuted by sworn testimony, but as evidence they are speculative, at best. Speculation, conjecture, the suggestion of a possibility, guesses, or even probability, are insufficient to establish an issue of material fact.

Appellant also offered to rebut the prima facie showing by the appellees with the affidavits of two doctors, neither of whom had examined or treated the grantor; nevertheless, they offered opinions, presumably to refute the opinion of the grantor’s treating physician. The appellees moved to strike the affidavit of both doctors on multiple grounds. Among the appellees’ challenges to the affidavits was an assertion that they failed to comply with W.R.C.P. 56(e). Although both affidavits referenced many medical records that the doctors reviewed and upon which they relied in reaching their conclusions, none of the records were attached to the affidavits, as required. The striking of these affidavits was proper and consistent with Wyoming law. The Wyoming Rules of Civil Procedure were adopted to promote an orderly and efficient means for the handling and disposing of litigation. Compliance with these rules of procedure in summary judgment matters is mandatory. Rule 56(e), in specific terminology, requires that affidavits: 1) be made on personal knowledge; 2) set forth facts which are admissible in evidence; 3) demonstrate the competency of the affiant to testify on the subject matter of the affidavit; and 4) have attached to them the papers and documents to which the affidavit refers.

Although Appellant recognizes the general requirements of Rule 56(e) that documents referred to in an affidavit be attached, he argues that the evidentiary rules governing experts, W.R.E. 703 and 705, somehow relieve expert witnesses of this requirement. However, affidavits used in summary judgment proceedings must set forth such facts as are admissible in evidence, and that is especially true when the affidavit contains significant opinions and conclusions that may be critical in the outcome of the case. It matters not that the opinion of an expert may be admissible at trial without first revealing the underlying facts and basis for that opinion, in a summary judgment hearing the requirements are different. The fact finder must have the material facts, determine whether they are in dispute, and if undisputed, whether judgment results as a matter of law. The affidavit presented, insofar as it presents opinions and conclusions resulting from an analysis of records not before the court, may not be considered for the purpose of awarding summary judgment. Rule 56(e)’s requirement that documents referenced in an affidavit be attached is not merely a formality or technicality. To allow an expert to state opinions and conclusions without requiring any documented support of such not only violates the plain language of Rule 56(e), but is also contrary to the summary judgment requirement that evidence opposing a motion for summary be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation.

In order to establish that a trust was executed under undue influence, the plaintiff must establish four elements: 1) the relation between the one charged with exercising undue influence and the decedent afforded the former an opportunity to control the testamentary act; 2) the decedent’s condition was such to permit subversion of his freedom of will; 3) there was activity on the part of the person charged with exercising undue influence; and 4) such person unduly profited as a beneficiary under the trust. In the present action, the grantor’s daughter was not even in Sheridan, Wyoming, and had not spoken with her mother during the time frame that the grantor’s estate plan was developed. The impetus and genesis of the modified estate plan was appellee First Interstate’s concern with tax consequences. The details and drafting of the estate plan arose primarily from the expertise, recommendations, and the execution facilitated by two of grantor’s attorneys. The record indicates that the attorneys were vigilant in ensuring that the plan reflected the grantor’s wishes, and that her daughter was not involved in the decisions surrounding the estate plan. Many undeniably independent professionals worked with grantor in crafting and executing her estate plan. Each of these professionals was cautious and thorough in his or her efforts to ensure that grantor’s wishes were honored, and that her decisions were made independent of outside influences. Even viewing the facts in the light most favorable to Appellant, it cannot be said that there are disputed material facts regarding whether grantor was subjected to undue influence.

Intentional interference with an inheritance Expectancy is not a tort which has been recognized in Wyoming. The record is insufficient to allow the court to undertake the careful and deliberate analysis required to warrant adoption of a new tort. Although Appellant claims the record contains “additional materials” supporting his claim, he does not specify the location or substance of such. The appellant carries the burden of bringing a complete record for review. Given the relative dearth of argument, factual analysis, or legal support found in the record supporting Appellant’s claim for adoption of the tort of intentional interference with an inheritance expectancy, this is not a proper case within which to undertake such action. Therefore, the district court’s award of summary judgment on the appellant’s claim is affirmed.

Upon plenary review of the all evidence submitted, and viewing the facts in the light most favorable to Appellant, the granting of summary judgment on all issues raised on appeal are affirmed. Appellant has failed to demonstrate a disputed question of material fact regarding grantor’s’ mental capacity to execute the estate planning documents, or her daughter’s alleged undue influence. Furthermore, because Appellant has failed to present cogent argument or cite to pertinent authority favoring adoption of the tort of intentional interference with an inheritance expectancy.




J. Voigt delivered the opinion for the court.

Summary 2010 WY 142

Summary of Decision November 4, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was 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 need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter 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: AJJ v. The State of Wyoming, Department of Family Services

Citation: 2010 WY 142

Docket Number: S-10-0038

URL: http://tinyurl.com/2cxftrx

Appeal from the District Court of Sheridan County, Honorable John G. Fenn, Judge

Representing Appellant (Respondent): John M. Burman, Director Legal Services, UW College of Law; Benjamin Hewett, Student Intern

Representing Appellee (Petitioner): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General

Guardian Ad Litem: Jan K. Flaharty, Sheridan, Wyoming

Date of Decision: November 4, 2010

Facts: Appellant challenges the district court order terminating hi parental rights contending that there

Issues: Whether the district court’s determination that Appellant’s parental rights should be terminated was established by clear and convincing evidence. Whether DFS was required, under Wyo. Stat. Ann. § 14-2-309(a)(v), to prove that less intrusive alternatives to termination of Appellant’s parental rights were impractical.


Holdings: The district court terminated Appellant’s parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(v) which provides for termination when a child has been in foster care under the responsibility of the state of Wyoming for fifteen (15) of the most recent twenty-two (22) months, and a showing that the parent is unfit to have custody and control of the child. In the present action, Appellant does not dispute that the children have been in foster care for the requisite number of months. He asserts, however, that DFS did not prove by clear and convincing evidence that he was “unfit to have custody and control” of the children. The term “unfit” is not defined in the statute, but the court has have previously recognized that fitness includes the ability to meet the ongoing physical, mental and emotional needs of the child. Whether a parent is fit to have custody and control of a child is a decision that must be made within the context of a particular case and depends upon the situation and attributes of the specific parent and child. Here, the district court found Appellant unfit to have custody and control of the children based on several factors, including his criminal history, inability to care for the special needs of his children, and failure to participate in counseling or parenting education.

At trial, the district court observed that the Appellant had a prior child abuse conviction. Appellant asserts the district court erred by focusing on the previous child abuse conviction rather than his current fitness as a parent. Appellant does correctly state that the statute requires a finding of unfitness at the time of the termination proceedings. That does not mean, however, that the district court must ignore evidence of a parent’s previous unfitness. Appellant has three felony convictions. He also has a battery conviction and documented involvement in two domestic disputes. Appellant argues he has been rehabilitated following the child abuse conviction, but evidence demonstrates he refuses to take responsibility for the incident. Appellant’s attempt to minimize the event and his failure to take responsibility for his past abusive conduct was important and relevant evidence that the district court could properly take into account in determining Appellant’s current parental fitness. It is appropriate for a district court to consider a parent’s history and pattern of behavior over time in determining whether rights should be terminated.” There was no error in the district court’s consideration of this evidence. Additionally, the district court did not rely solely on Appellant’s criminal history in determining unfitness. It also found that Appellant was not fit to meet the specific physical, mental and emotional needs of the children. Both children have special needs. Appellant was offered counseling and training to help him understand and meet the special needs of his children, but he did not accept this help. At trial, he testified that the childcare providers and doctors did not understand the needs of his children. When asked about the condition of his children he testified that “they ain’t that fragile” and “nobody knows” their needs. The district court further determined that Appellant did not meet other requirements of the DFS case plan. He did not maintain steady employment or establish a suitable home for the children. When given the opportunity to visit the children more than once a week, Appellant declined, even though he was unemployed for the six months prior to the termination of his parental rights, and DFS offered vouchers to help him with travel expenses. Appellant rarely called the children at their foster home, though he was encouraged to call every night. He contacted the children’s teachers only twice during the period of time between his release from incarceration and the termination of his parental rights. He seldom met with his counselors. Thus, the district court’s decision is supported by clear and convincing evidence.


In evaluating whether parental rights were properly terminated under 14--309(a)(iii), DFS must prove it has attempted “less intrusive” alternatives as part of its “reasonable efforts” to rehabilitate the family. . However, when termination is sought pursuant to other subsections of Wyo. Stat. Ann. § 14-2-309, “reasonable efforts to rehabilitate the family” are not required. Appellant’s parental rights were terminated pursuant to Wyo. Stat. Ann. § 14-2-309(a)(v). Under this statutory subsection, DFS must prove that the children have been in foster care for fifteen of the most recent twenty-two months and that the parent is unfit to have custody and control of the children. DFS satisfied that burden by clear and convincing evidence.

Affirmed.


J. Burke delivered the opinion for the court.