Susan Lynn Kummerfeld v. John Gary Kummerfeld , 2013 Wyo. LEXIS 119 ( 2013 )

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 112APRIL TERM, A.D. 2013
September 27, 2013
SUSAN LYNN KUMMERFELD,
Appellant
(Plaintiff),
v. S-13-0028
JOHN GARY KUMMERFELD,
Appellee
(Defendant).
Appeal from the District Court of Campbell County
The Honorable Dan R. Price II, Judge
Representing Appellant:
Mary Elizabeth Galvan of Galvan & Fritzen, Laramie, WY.
Representing Appellee:
DaNece Day of Lubnau Law Office, P.C., Gillette, WY.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] In her appeal of the district court’s property allocation, Susan Lynn Kummerfeld
(Wife) contends that the court erred when it only gave her 23% of the total assets, with
the remainder going to her ex-husband John Gary Kummerfeld (Husband). We affirm.
ISSUE
[¶2] Wife states her single issue as follows:
Whether the district court abused its discretion in the manner
in which it divided the property between the divorcing parties
by allocating 23% of the property to Wife and the remainder
to Husband.
FACTS
[¶3] Husband and Wife were married on January 21, 1995. Husband and Wife were
married for seventeen years at the time they decided to separate. The marriage was a
second marriage for each party. Husband, who was in his late fifties when the parties
married, brought over $1 million in assets to the marriage. 1 Wife, who was in her early
forties, brought no assets to the marriage.
[¶4] Husband is a third-generation rancher in Campbell County, Wyoming and still
maintains the 1,080-acre family ranch outside of Rozet. During the parties’ marriage
Husband continued the ranch work while also operating his construction and oil field
business. Wife did not work outside the couple’s home. Prior to the marriage Wife
worked at Sam’s Club in Casper. Having been previously injured, Wife receives Social
Security Disability income of $1,460.00 per month. Eventually, Husband sold his
interest in the construction company for $2.6 million and he also agreed to purchase his
family ranch. Prior to his purchase of the entire ranch, Husband’s family gifted a 20-acre
parcel to the parties as a wedding gift, separate from the ranch as a whole. A
manufactured house was placed on that parcel, which is where the couple resided during
their marriage.
[¶5] During the marriage, in 1999 Husband entered a formal contract with his parents
to purchase the family ranch for $132,000.00. As noted, in 2001 Husband sold his
interest in his construction company for approximately $2.6 million. The parties
separated in 2011 and these two assets – the ranch and the proceeds from the construction
company sale – became the primary issue in the couple’s divorce.
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Though no prenuptial agreement was entered, Husband had, for purposes of securing a bank loan, a
financial statement prepared establishing his assets near the time of the parties’ marriage.
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[¶6] After trial and after having valued the total assets to be divided between the parties
at approximately $4.5 million, the district court awarded Wife over $1 million and
Husband approximately $3.4 million. Wife appealed the district court’s decision. More
facts will be elicited hereinafter as necessary.
STANDARD OF REVIEW
[¶7] Our standard of review in cases involving property division is well-established:
The district court has broad discretion to divide marital
property in a divorce. Sanning v. Sanning, 2010 WY 78, ¶ 8,
233 P.3d 922, 923 (Wyo. 2010); Root v. Root, 2003 WY 36,
¶ 8, 65 P.3d 41, 44 (Wyo. 2003). See also, Wyo. Stat. Ann. §
20-2-114 (LexisNexis 2009) [see below]. We review the
district court’s disposition of marital property using the abuse
of discretion standard. Sanning, ¶ 8, 233 P.3d at 923. See
also, Sweat v. Sweat, 2003 WY 82, ¶ 6, 72 P.3d 276, 278
(Wyo. 2003). “An abuse of discretion occurs when the
property disposition shocks the conscience of this court and
appears to be so unfair and inequitable that reasonable people
cannot abide it.” Hall v. Hall, 2002 WY 30, ¶ 12, 40 P.3d
1228, 1230 (Wyo. 2002).
Rosendahl v. Rosendahl, 2011 WY 162, ¶ 3, 267 P.3d 557, 559 (Wyo. 2011).
DISCUSSION
[¶8] Wife’s only argument on appeal is that the trial court inequitably divided the
marital assets. She asserts that the district court ignored the great weight of the evidence
in segregating the Rozet ranch, which she states was purchased during the marriage, and
the parties’ investments from the proceeds of the construction business, from the marital
estate. As to the ranch, Wife contends that it was “acquired wholly during the marriage,
with marital income.” She makes essentially the same argument regarding the
investment accounts arguing that because the construction business was sold during the
marriage, the award is substantially imbalanced. Husband, of course, disagrees with
Wife and maintains on appeal that the district court did not abuse its discretion.
[¶9] In property division cases we look to Wyo. Stat. Ann. § 20-2-114 (LexisNexis
2013), which states:
§ 20-2-114. Disposition of property to be equitable;
factors; alimony generally.
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… [I]n granting a divorce, the court shall make such
disposition of the property of the parties as appears just and
equitable, having regard for the respective merits of the
parties and the condition in which they will be left by the
divorce, the party through whom the property was acquired
and the burdens imposed upon the property for the benefit of
either party and children. The court may decree to either
party reasonable alimony out of the estate of the other having
regard for the other’s ability to pay and may order so much of
the other’s real estate or the rents and profits thereof as is
necessary be assigned and set out to either party for life, or
may decree a specific sum be paid by either party.
With this statute and the standard of review in mind we turn to our case law, which is
also quite helpful. First, in Sanning v. Sanning, 2010 WY 78, 233 P.3d 922 (Wyo. 2010),
the husband claimed that the district court improperly awarded the cabin to wife based
upon sentimental value. This Court held that § 20-2-114 permitted the district court to
consider a variety of factors in distributing the property, including the party through
whom the property was acquired. That factor incorporated the concept of sentimental
value, and this Court ultimately upheld the district court’s decision to award the cabin to
the wife based upon a substantial discount at which it was purchased from Wife’s
grandparents and offsetting the contributions by Husband and his family with a monetary
distribution to Husband.
[¶10] Likewise, in Wallop v. Wallop, 2004 WY 46, ¶¶ 14-15, 88 P.3d 1022, 1028 (Wyo.
2004), this Court upheld the award of a family ranch to the husband although it resulted
in a property distribution weighted heavily in husband’s favor. We stated:
Wife’s primary contention is that the trial court
inequitably divided the marital assets. She asserts that
Husband was awarded the Canyon Ranch, which caused a
substantial imbalance in the value of the property awarded
each party. Husband counters that the trial court properly
considered the merits of the parties and through whom the
Canyon Ranch and other property were acquired in
fashioning a just and equitable division.
This court in Hall v. Hall, at ¶¶ 13-14, addressed a
similar argument. In that case this court recognized:
The trial court possesses a great amount of discretion
in dividing marital property. A just and equitable
division of property is just as likely not to be equal.
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Carlton v. Carlton, 997 P.2d 1028, 1032 (Wyo. 2000).
Although the trial court cannot divide the property in
such a way that it would punish one of the parties, it
may consider fault of the respective parties, together
with all other facts and circumstances surrounding the
dissolution of the marriage in dividing a couple’s marital
assets. 997 P.2d at 1034. We are required to limit our
review of the record to an evaluation of whether the trial
court’s decision was supported by sufficient evidence,
and we afford to the prevailing party every favorable
inference while omitting any consideration of evidence
presented by the unsuccessful party. Id. Findings of
fact not supported by the evidence, contrary to the
evidence, or against the great weight of the evidence
cannot be sustained. Id.
Id., at ¶ 14. In France v. France, 902 P.2d 701, 704 (Wyo.
1995) (emphasis added) we stated:
The property which is subject to division under our
statute consists of property which is the product of the
marital union and was acquired during the course of
the marriage by the joint efforts of the parties. …Wyo.
Stat. § 20-2-114 includes as a factor, “the party
through whom the property was acquired ….” In
Warren v. Warren, 361 P.2d 525 (Wyo. 1961), we held
property, which was inherited by or given to that party,
can properly be awarded to the party by whom it was
inherited or given. In Paul v. Paul, 616 P.2d 707(Wyo. 1980), we held it is not an abuse of discretion to
award to a party the property he brought to the
marriage.
In France, we affirmed a property division in which the
wife received an overwhelming majority of the property. We
agreed with the trial court that, because most of the couple s
property was brought into the marriage by the wife or
inherited by her, she was the appropriate party to receive it
upon their divorce. France, at 706. In accord see Pittman v.
Pittman, 999 P.2d 638, 640 (Wyo. 2000), where we held that
when most of the property was brought into the marriage by
one party or acquired during the marriage through that party,
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it is not unreasonable that the party through whom the
property was acquired receive a larger share.
Id. (Emphasis in original.)
[¶11] In this case it is undisputed and acknowledged by both parties that the Rozet ranch
has been in Husband’s family for three generations. Husband’s family owned the ranch
his entire life and when Husband was 18 years old, he bought cattle and began to run
those cattle on the ranch. In 1959 he built a five-bedroom house on the ranch with the
hope of someday living there as an adult. Husband’s accountant and son-in-law testified
regarding the time and money Husband invested in the ranch. In fact, Husband paid his
Father rent over the years, which was supposed to be “applied” to “buying the ranch.”
When Husband agreed to purchase the ranch from his parents for $132,000.00, he did so
at that reduced price based upon his 40 years of working the ranch. That the district court
found that the dealings between Husband and his parents to purchase the ranch were not
at “arm’s length” is significant. Though the parties argue as to whether or not the ranch’s
sale price was below fair market value, the district court properly focused on what was of
real value in its distribution of the ranch: through whom the property was acquired.
While the actual purchase of the ranch was done during the parties’ marriage, it
nevertheless remains a fact that the ranch was originally Husband’s family asset.
[¶12] We find that the evidence weighs in favor of Husband. Wife argues vehemently
that there was no testimony to any contribution other than rent and no testimony
regarding Husband’s ranching operating. Instead, she contends that the evidence
demonstrated only that Husband had simply been allowed to run cattle on the ranch as a
renter over the years. Yet, the ranch belonged to his family for three generations.
Husband occupied the ranch from the time he was eighteen years old. The ‘rent’ he paid
was to be applied to an eventual purchase of the ranch and Husband began that process
while married to Susan. The record reflects that the ranch property has been in
Husband’s family for generations and that a reduced price sale of the ranch to Husband in
effect compensated for money, time, and effort spent on the ranch.
[¶13] Finally, Wife generally argues that her non-economic contributions must be
considered by the district court to have increased the value of the Ranch. However, Wife
fails to particularly enumerate any of her non-economic contributions or how they
actually increased the value of the ranch. Instead she identifies these contributions in
very broad terms. Viewing the evidence in the light most favorable to Husband and
giving him the benefit of all reasonable inferences as we are required to do under the
applicable standard of review, we conclude that the district court did not abuse its
discretion when it awarded the ranch to Husband.
Investment Accounts
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[¶14] Husband’s interest in K&H Construction provided him proceeds from the sale of
his interest in that business totaling approximately $2.6 million, with a tax consequence
of $900,000.00. The proceeds of this sale were placed in investment accounts with DA
Davidson. The district court awarded monies in the DA Davidson accounts totaling
$106,202.00 to Wife and the remaining amounts in the DA Davidson and an Edward
Jones account totaling $1,814,334.00 to Husband.
[¶15] Proceeds from the sale of the construction business were also used to buy three
houses in Nevada, two of which the district court awarded to Wife, totaling a value of
$418,400.00. The remaining house was awarded to Husband and held a value at the time
of $361,200.00. Wife was also awarded bank accounts amounting to $213,656.00 and a
cash payment of $235,000.00. Husband was awarded an $81,000.00 bank account.
However, Wife contends that in its distribution of assets the district court failed to give
proper consideration to the increases in the value of the parties’ investments and thus
abused its discretion when it divided the property.
[¶16] Wife argues again that her non-economic contributions must be considered by the
district court to have increased the value of the overall marital estate. Wife largely points
to the acquisition of the ranch and to the couple’s joint investments from the proceeds of
the sale of the construction business. Again, Wife fails to particularly enumerate any of
her non-economic contributions or how they actually increased the value of the marital
estate. Our review of the record paints a different picture. While we see the value of
Wife as a homemaker and do not disvalue that contribution, it is Husband’s efforts that
remained the primary source of the couple’s financial situation. Once more, viewing the
evidence in the light most favorable to Husband and giving him the benefit of all
reasonable inferences, we must conclude that the district court did not abuse its discretion
when it divided the investment accounts as it did. We also note that evidence exists in
the record that Wife was possibly funneling her Social Security income to a hidden
account; that Wife misled the trial court as to the nature of personal property; that Wife
removed $81,000.00 from a joint account to another account without Husband’s
knowledge; and that Wife only disclosed at trial an $80,000.00 loan she made to her son
from joint assets.
[¶17] Wife relies on a number of Wyoming cases in support of her argument. In
Breitenstine v. Breitenstine, 2003 WY 16, 62 P.3d 587 (Wyo. 2003), this Court found that
premarital assets were “treated as marital” where the husband co-mingled his premarital
and inherited assets by placing all into joint accounts to which both parties had access.
This is unlike the present case where Husband did not combine accounts and titles.
Rather, most accounts remained separate and Wife did not have access to accounts in
Husband’s name nor did she have access to any ranch accounts, let alone was her name
on the ranch property.
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[¶18] Likewise, Wife cites to France v. France, 902 P.2d 701 (Wyo. 1995) as an
example of this Court’s focus on assets that were acquired or increased in value as
“products of the union.” There, even though husband worked on wife’s family’s ranch,
he had no interest in the ranch because those assets were not created by the couple during
the marriage. Here, Husband had spent 41 years prior to the marriage working toward his
eventual assets.
[¶19] We remind the parties that the trial court possesses a great amount of discretion in
dividing marital property. A just and equitable division of property is just as likely not to
be equal. Carlton v. Carlton, 997 P.2d 1028, 1032 (Wyo. 2000).
CONCLUSION
[¶20] Decisions regarding the division of marital property are within the trial court’s
sound discretion, and we will not disturb them on appeal unless there is a clear showing
of an abuse of discretion. Here, the district court properly assessed the facts and
considered each of the required factors in making its determination. We hold that there is
no abuse of discretion. Affirmed.
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