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.