Guy Morrison, Iii v. Tami Hinson-Morrison ( 2024 )

IN THE SUPREME COURT, STATE OF WYOMING
2024 WY 96APRIL TERM, A.D. 2024
September 5, 2024
GUY MORRISON, III,
Appellant
(Defendant),
v. S-23-0267
TAMI HINSON-MORRISON,
Appellee
(Plaintiff).
Appeal from the District Court of Campbell County
The Honorable Matthew F.G. Castano, Judge
Representing Appellant:
Guy Morrison, III, pro se on opening brief, Donna D. Domonkos, Domonkos &
Thorpe, LLC, Cheyenne, Wyoming.
Representing Appellee:
Codie D. Henderson and Cole L. Gustafson, Davis & Cannon, LLP, Sheridan,
Wyoming.
Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, 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 typographical or other formal errors so correction may be made before final
publication in the permanent volume.
JAROSH, Justice.
[¶1] Guy Morrison, III (Husband), challenges various aspects of the property division in
the decree divorcing him from Tami Hinson-Morrison (Wife), including the enforceability
of a premarital agreement and determinations regarding equitable distribution. We affirm.
ISSUES
[¶2] Husband raises seven issues on appeal, but we rephrase and consolidate them as
follows, and include Wife’s separate issues:
1. Should this Court summarily affirm the district court due to deficiencies
in Husband’s pro se brief?
2. Did the district court err in interpreting and applying the Premarital
Agreement, including in its findings related to gifts, commingling, and
abandonment?
3. Did the district court abuse its discretion in its equitable distribution of
the parties’ assets and debts?
4. Should this Court award Wife attorney fees and costs incurred on appeal?
FACTS AND PROCEDURAL BACKGROUND
[¶3] Husband and Wife married in 2007 and had no children. On the day of the marriage,
but before the ceremony, the parties executed a Premarital Agreement (the Agreement)
drafted by Husband’s attorney. The Agreement stated that in the event of a divorce: a)
each party would retain his or her individual property owned on the date of the Agreement;
b) each party would retain any property acquired out of the proceeds or by the appreciation
of property owned on the date of the Agreement; and c) each party would retain any
property acquired by gift or inheritance. The Agreement also included lists of the parties’
assets and liabilities. When the parties executed the Agreement, Wife owned two
commercial real estate businesses, Capital Development Group, Inc. (Capital), and Golden
Development, LLC (Golden). She also owned a home in Gillette, Wyoming (Gillette
residence). Husband’s assets were four certificates of deposit worth approximately $1
million.
[¶4] After they married, Husband formed three oil and gas companies, the Gas Max,
LLC (Gas Max); Vertical Injection Pumping Systems, LLC (VIPS); and Legacy
Separators, LLC (Legacy).1 When Husband formed Legacy in 2012, he transferred a 10%
interest in Legacy to Wife, who worked for Legacy part time. Husband made
1
It appears the trial court inadvertently added an “x” to the entity named Gas Max, LLC. In addition, and
although the district court refers to it as Legacy Separators, Inc., it appears from the record Legacy
Separators is a limited liability company.
1
improvements to the Gillette residence after they married: He built a shop for $60,000,
installed a fence for $10,000, and replaced a basement beam for $12,000. In 2012, Wife
wrote four checks totaling $100,000 out of a Legacy bank account. She testified she did
so because she was concerned Husband was running low on funds and would deplete
Legacy’s assets. She further testified she eventually returned the funds to Husband by
investing the money in VIPS, while Husband testified he knew nothing of the transactions.
In 2021, Husband wrote a $137,500 check out of his personal trust account to Wife’s
company, Golden, to assist in developing lots previously purchased on Decoy Avenue in
Gillette (Decoy Avenue lots). At trial, Husband testified he was supposed to be deeded a
50% interest in each of the lots, but never was. According to Wife, the plan to develop the
Decoy Avenue lots proved unworkable, but Husband told her to keep the $137,500 as her
10% interest in a settlement Legacy received.
[¶5] On August 15, 2022, Wife filed for divorce. Prior to trial, Husband filed a Motion
for Allocation of Funds asking the district court to require Wife to amend her 2021 tax
return and remove a credit for a $140,000 estimated tax payment made by him that Wife
claimed on her tax return. Husband paid the $140,000 prepayment out of his separate
account.2 Wife asked the court to deny the motion and either incorporate the tax issue into
the division of the marital estate or order the parties to file a joint return, as they had done
in the past. The district court ordered the parties to “file an amended joint tax return –
married filing jointly – for the 2021 tax year . . . as soon as reasonably possible.”
[¶6] The parties tried the case to the bench on July 17, 2023. Neither party requested
special findings of fact under Wyoming Rule of Civil Procedure (W.R.C.P.) 52(a)(1)(A).
On August 14, 2023, the district court issued its Decision Letter, which it later incorporated
into a final Decree of Divorce (Decree). The court concluded the Agreement was clear and
unambiguous, “except to the extent that it omits what, if any, effect the commingling of
funds may have on its application.” Nevertheless, the district court decided the issue of
commingling was moot because it could divide the parties’ property in accordance with the
Agreement’s express terms and Wyoming’s equitable distribution statute, Wyo. Stat. Ann.
§ 20-2-114 (LexisNexis 2023). The district court then awarded Wife Golden and Capital,
and ruled that “all bank accounts, vehicles, real estate, and debt owned by [Golden] and
[Capital] shall not be allocated to the individual parties in this matter,” but would remain
assets of the respective companies. The court additionally ruled “any contributions made
by Husband to the property allocated to the Wife as her individual property in the pre-
marital agreement will not be compensated and will be viewed as spousal gifts.” This
included the $137,500 Husband paid from a personal trust account to Golden for
development of the Decoy Avenue lots. The court made no finding regarding the $100,000
2
Husband alleged his accountant asked him to provide an estimated tax payment of $140,000 to the IRS
with his social security number on the check “so the IRS would be able to identify where to apply the tax
payment.” According to Husband, the accountant credited both parties’ individual tax returns with the
$140,000 payment and alerted the parties that one of the returns would need to be amended to delete the
$140,000 credit.
2
in checks that Wife alleges she wrote from Legacy’s account and later returned to Husband
via VIPS.
[¶7] The district court divided the parties’ remaining assets not addressed in the
Agreement in accordance with § 20-2-114(a). Specifically, it awarded Husband the three
businesses he formed after the parties married: Legacy, VIPS, and the Gas Max, with Wife
retaining her 10% interest in Legacy. The district court awarded Husband a residence in
Arkansas, a 2013 Chevy Camaro (which was jointly titled), certain bank accounts and
investment accounts, his revocable trust, and other miscellaneous assets. Along with
Golden and Capital and her interest in Legacy, Wife received the Gillette residence (and
its mortgage), certain bank and investment accounts, and her individual trust. The court
noted it did not hear testimony regarding some investment accounts and therefore
“[allocated] such accounts in accordance with Plaintiff’s Exhibit 38 that summarized the
parties’ property and debt acquired prior to and during the marriage.” The court
incorporated Plaintiff’s Exhibit 38 into its Decision Letter. The parties retained certain
other personal property. The district court ruled each party was responsible for 50% of
joint credit card debt and 100% of his or her own credit card debt.
[¶8] Finally, the district court also ruled (again) on the tax issue and ordered the parties
to file joint returns for 2021 and 2022 and “be responsible for their share of any tax
obligation in proportion to their individual income.” It also ordered the parties to bear
their own attorney’s fees and costs.
[¶9] This appeal followed.
DISCUSSION
I. Summary Affirmance.
[¶10] Wife argues this Court should refuse to consider Husband’s pro se brief and
summarily affirm the district court because Husband’s brief does not comply with the
Wyoming Rules of Appellate Procedure (W.R.A.P.). “We have discretion whether to
summarily affirm when a brief is deficient under the rules of appellate procedure.” Burke
v. State, 2024 WY 33, ¶ 8, 545 P.3d 440, 442 (Wyo. 2024) (citing Anderle v. State, 2022
WY 161, ¶ 18, 522 P.3d 151, 154 (Wyo. 2022)). Pursuant to W.R.A.P. 1.03(b), this Court
may impose sanctions, including summary affirmance, on pro se litigants who fail to
comply with these rules. Byrnes v. Harper, 2019 WY 20, ¶ 3, 435 P.3d 364, 366 (Wyo.
2019). Although we afford a certain leniency to pro se litigants, they must reasonably
adhere to the procedural rules and requirements of this Court. Id.[¶11] Wife lists the following deficiencies in Husband’s brief: 1) failing to attach a copy
of the judgment, decision letter, and statement of costs; 2) failing to include his telephone
number; 3) using the wrong font size; and 4) improperly stating the name of an out-of-state
3
attorney who was not admitted pro hac vice. Wife alleges the following procedural
deficiencies by Husband: 1) designating the record late; 2) failing to timely and properly
serve the brief; and 3) failing to file the brief electronically. Finally, Wife argues
Husband’s brief lacks cogent argument supported by legal authority.
[¶12] We decline to summarily affirm the district court’s decision and/or reject Husband’s
appeal entirely. Although Husband’s brief is not compliant with some aspects of the rules
of appellate procedure, it is sufficient for us to discern the nature of the issues raised. See,
e.g., Young v. State, 2002 WY 68, ¶ 9, 46 P.3d 295, 297 (Wyo. 2002) (declining to
summarily affirm although pro se defendant’s brief was deficient in certain respects).
Given Husband provides some citations and some cogent argument, we will approach the
sufficiency of Husband’s legal arguments issue-by-issue.
[¶13] Wife also argues this Court should refuse to consider Husband’s pro se brief because
he filed it while still represented by appellate counsel.3 In support, Wife cites W.R.C.P.
11(a), which requires counsel of record to sign every court-filed brief. “The purpose of
W.R.C.P. 11 is to deter baseless filings and streamline the administration and procedure of
courts.” Dewey v. Dewey, 2001 WY 107, ¶ 16, 33 P.3d 1143, 1147 (Wyo. 2001) (citations
omitted). “On its face, Rule 11 does not apply to appellate proceedings.” Id., ¶ 28, 33 P.3d
at 1150 (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 2454,
110 L.Ed.2d 359 (1990)). Wife also cites to W.R.A.P. 14.05, which applies to criminal
appellants, and to cases where both counsel and client filed briefs, none of which apply
here.
II. The Premarital Agreement.
[¶14] Husband argues the district court erred in finding he made gifts to Wife under the
Agreement. He also asserts that because the parties commingled assets and the Agreement
was silent as to commingling, the district court should have declared the Agreement
abandoned and distributed all the parties’ property pursuant to § 20-2-114(a). In addition,
Husband asserts any traceable “contributions” he made to assets received by Wife should
be returned to him.
[¶15] Prenuptial or antenuptial agreements are valid and enforceable in Wyoming and are
governed by the same rules of construction applicable to other contracts. Seherr-Thoss v.
3
Prior to Husband filing his opening brief, his then-counsel of record, Anna Reeves Olson of Long Reimer
Winegar, LLP, moved to withdraw. We denied the motion, but called attention to W.R.A.P. 19.02, which
would have permitted counsel to withdraw upon a submission of a client acknowledgement “stating a desire
to proceed pro se.” When he filed his opening brief, Husband was still represented by Ms. Olson. However,
Husband filed the brief with a cover page stating he was “pro se” and received “assistance from” Larry
Steidley, an attorney from Oklahoma. Husband is the only person who signed the opening brief. Donna
D. Domonkos later entered her appearance, replacing Ms. Olson as attorney of record, and signed and filed
Husband’s reply brief.
4
Seherr-Thoss, 2006 WY 111, ¶ 11, 141 P.3d 705, 712 (Wyo. 2006) (quoting Lund v.
Lund, 849 P.2d 731, 739 (Wyo. 1993)). “Contract interpretation is a matter of law which
we consider de novo.” Hensel v. DAPCPA RPO, LLC, 2023 WY 84, ¶ 12, 534 P.3d 460,
464 (Wyo. 2023). Our goal in interpreting contracts is to “ascertain the parties’ intent as
evidenced by the specific language of the agreement.” Van Vlack v. Van Vlack, 2023 WY
104, ¶ 20, 537 P.3d 751, 757 (Wyo. 2023) (citing Hofhine v. Hofhine, 2014 WY 86, ¶ 9,
330 P.3d 242, 245 (Wyo. 2014)).
[¶16] According to our established standards for interpretation of contracts,
[t]he words used in the contract are afforded the plain meaning
that a reasonable person would give them. When the
provisions in the contract are clear and unambiguous, the court
looks only to the “four corners” of the document in arriving at
the intent of the parties. In the absence of any ambiguity, the
contract will be enforced according to its terms because no
construction is appropriate.
Van Vlack, ¶ 20, 537 P.3d at 757 (citation omitted). Unless a contract is ambiguous, a court
should consider only the four corners of the contract to derive the parties’ objective intent.
TEP Rocky Mountain LLC v. Rec. TJ Ranch Ltd. P’ship, 2022 WY 105, ¶ 45, 516 P.3d
459, 474 (Wyo. 2022). Accordingly, when the contracting parties leave a term out of their
agreement, this Court deems the omission intentional. Evans v. Moyer, 2012 WY 111, ¶
29, 282 P.3d 1203, 1212 (Wyo. 2012) (quoting Mathisen v. Thunder Basin Coal Co., 2007
WY 161, ¶ 16, 169 P.3d 61, 66 (Wyo. 2007)).
[¶17] Furthermore, “[w]here a contract is silent on a particular matter that easily could
have been drafted into it, a court should refrain from supplying the missing language under
the pretext of contract interpretation.” In re CDR, 2015 WY 79, ¶ 30, 351 P.3d 264, 270-
271 (Wyo. 2015) (quoting Herling v. Wyoming Machinery Co., 2013 WY 82, ¶¶ 35-36,
304 P.3d 951, 960 (Wyo. 2013)). We will not rescue parties from the consequences of a
poorly made bargain or a poorly drafted agreement by rewriting a contract under the guise
of construing it. Id., ¶ 30, 351 P.3d at 271 (citing Hunter, ¶ 23, 253 P.3d at 503); see also
Gumpel v. Copperleaf Homeowners Ass’n, Inc., 2017 WY 46, ¶ 42, 393 P.3d 1279, 1293
(Wyo. 2017) (“It is not the function of this Court or any court to write terms into a
contract.”).
[¶18] In contrast to our de novo standard of review for questions of contract interpretation,
we defer to the district court’s factual findings unless they are clearly erroneous. Claman
v. Popp, 2012 WY 92, ¶ 22, 279 P.3d 1003, 1012 (Wyo. 2012). Factual findings are clearly
erroneous when, although there is evidence to support them, the reviewing court is left with
the definite and firm conviction upon review of the entire record that the district court made
a mistake. Id. To the extent findings of fact are in question, we consider only the evidence
5
of the successful party, ignore the evidence of the unsuccessful party, and grant the
successful party every favorable inference that can fairly be drawn from the record.
Holland v. Holland, 2001 WY 113, ¶ 8, 35 P.3d 409, 412 (Wyo. 2001).
[¶19] “We do not substitute ourselves for the trial court as a finder of facts; instead, we
defer to those findings unless they are unsupported by the record or erroneous as a matter
of law.” Meiners v. Meiners, 2019 WY 39, ¶ 8, 438 P.3d 1260, 1266 (Wyo. 2019) (quoting
Galiher v. Johnson, 2018 WY 145, ¶ 6, 432 P.3d 502, 507 (Wyo. 2018)) (other citations
omitted).
[¶20] Finally, neither party requested special findings of fact under W.R.C.P. 52(a)(1)(A).
When no such request is made, “it shall not be necessary for the court to state its findings,
except generally for the plaintiff or defendant.” W.R.C.P. 52(a)(1). In the absence of
special findings of fact, this Court must consider that the trial court’s judgment carries with
it every finding of fact to support that judgment. Barney v. Barney, 705 P.2d 342, 345
(Wyo. 1985); see also, Bishop v. Bishop, 944 P.2d 425, 428 (Wyo. 1997) (“the parties must
request special findings of fact if they are desired, and in the absence of a special finding,
a general finding by the trial court carries with it every finding of fact supported by the
record”) (citing Deroche v. R.L. Manning Co., 737 P.2d 332, 335 (Wyo. 1987)).
A. Interpretation and Application of Agreement in General
[¶21] In relevant part, the Agreement states:
3. Assets as Separate Property. Each of the parties agree
that the property described in this paragraph shall remain the
separate and solely owned property of its owner:
A. All property, whether real or personal, owned by
either party at the effective date of this agreement;
B. All property acquired by a party out of the proceeds
or income from property owned at the effective date of this
Agreement, or attributable to appreciation in value of such
property, whether the enhancement is due to market condition
or to the services, skills, or efforts of its owner or anyone else;
C. All property acquired by either party by gift, devise,
bequest, or inheritance.
...
7. Disposition of Property to the Other. Notwithstanding
any other provision of this Agreement, either party may, by
appropriate written instrument only, transfer, give, convey,
devise or bequeath any property to the other; neither party
intends by this Agreement to limit or restrict in any way the
6
right to receive any such transfer, gift, conveyance, devise, or
bequest from the other except as herein stated.
[¶22] In its Decision Letter, the district court found the Agreement clear and unambiguous
and it was therefore obligated to enforce it:
Pursuant to Wyoming precedent, a “trial court is
obligated to enforce agreements of parties to marriage,
particularly antenuptial agreement, since they are entitled to
that certainty.[”] Seherr-Thoss v. [Seherr]-Thoss, 141 P.3d
705, 712 (Wyo. 2006); [s]ee also Lund v. Lund, 849 P.2d 731,
739 (Wyo. 1993). The purpose of “contract interpretation is to
discern the intention of the parties to the document.” Pope v.
Rosenberg, 361 P.3d 824, 830 (Wyo. 2015). A contract must
be read in whole and “each provision [must be read] in light of
all the others to find their plain meaning.” Sheridan Fire
Fighters Local No. 276, IAFF, AFL-CIO, CLC v. City of
Sheridan, 303 P.3d 1110, 1115 (Wyo. 2013). Courts presume
each provision within a contract has a purpose and should
“avoid interpreting a contract so as to find inconsistent
provision[s] or so as to render any provision meaningless.” Id.Moreover, “when the provisions in the contract are clear
and unambiguous, the court looks only to the ‘four corners’ of
the document in arriving at the intent of the parties.” Union
Pacific Resources Co. v. Texaco, Inc., 882 P.2d 212, 218-19
(Wyo. 1993). Contractual ambiguity arises when language is
“obscure in its meaning,” when it provides “indefiniteness of
expression,” or when it creates “a double meaning.” Amoco
Prod. Co. v. Stauffer Chem. Co. of Wyo., 612 P.2d 463, 465
(Wyo. 1980) (internal quotation marks and citation omitted).
Further, “where a contract is silent on a particular matter that
easily could have been drafted into it, a court should refrain
from supplying the missing language under the pretext of
contract interpretation.” In re CDR, 351 P.3d 264, 270-271
(Wyo. 2015).
The parties executed a pre-marital agreement on August
25, 2007. PL Ex. 1. The Court’s review of the pre-marital
agreement appears clear and unambiguous except to the extent
that it omits what, if any, effect the commingling of funds may
have on its application. Based on testimony at trial, both parties
intended to keep their property separate and under sole
7
ownership of the property owner. However, after execution,
the parties did not anticipate the issue of commingling separate
assets. Based on the Wyoming Supreme Court's decision in In
re CDR, this court will not supplement language of the pre-
marital agreement and will divide property in accordance with
the agreement. In light of this court’s rulings hereinbelow, the
issue of the effect of commingling of assets is effectively moot.
The language of the pre-marital agreement is simple and
straight forward. It is understandable to parties of reasonable
intelligence who are familiar with business affairs, as both
these parties are. Reviewing the language of the pre-marital
agreement, all bank accounts, vehicles, real estate[ ], and debt
owned by Golden Development Group, Inc. and Capital
Development, LLC shall not be allocated to the individual
parties in this matter. In addition, any contributions made by
Husband to the property allocated to the Wife as her individual
property in the pre-marital agreement will not be compensated
and will be viewed as spousal gifts.
[¶23] We agree the Agreement is clear and unambiguous. Its terms are simple and
straightforward. It addressed the parties’ financial positions as of the date of signing, stated
each parties’ assets “shall remain” the property of the owner, and provided the parties could
transfer, give, or convey property to the other through appropriate written instrument.
Provided the transactions between Husband and Wife fell under the Agreement’s express
terms, the Agreement governed distribution of assets and debts.
B. Gifts
1. $137,500 payment to Golden
[¶24] Husband asserts the district court erred in finding the $137,500 check written by
Husband from his trust account to Golden was a gift to Wife. He claims he contributed
$137,500 to the project to develop the Decoy Avenue lots in exchange for an interest in the
lots. He also argues the $137,500 was not a gift under the Agreement because there was
no appropriate written instrument and Golden was not a party to the case.
[¶25] Spousal gifts are addressed in Paragraph 7 of the Agreement, quoted above.
Applying Wyoming law, the district court concluded when Husband wrote the $137,500
check to Golden, it was presumed to be a gift to Wife:
[W]hen title to real estate [i]s taken in the names of both
spouses but only one spouse pa[ys] for it, there [is] a rebuttable
8
presumption that a fifty percent interest [i]s intended as a gift
to the nonpaying spouse. It follows, then, that when a spouse
pays for real property and titles it in the other spouse’s name,
there is a presumption that the entire property is intended as a
gift.
Barton v. Barton, 996 P.2d 1, 4 (Wyo. 2000). In Barton, we also cited to Tyler v. Tyler, 624
P.2d 784, 785-86 (Wyo. 1981). There, the husband and wife similarly entered into an
antenuptial agreement which provided for “separate ownership, enjoyment and disposal of
their separate properties, whether acquired before or during their marriage.” Id.Nevertheless, we applied the “general rule that when title to real property is taken in the
name of both spouses and the consideration therefor is furnished by only one of them, there
is a rebuttable presumption that a gift of one-half interest therein is intended for the other
spouse …” and found sufficient evidence “to support the district court’s finding that a gift
of one-half of the property was intended and made by husband to wife.” Id.[¶26] “The inquiry into whether or not the presumption of a gift has been rebutted is, by
necessity, a factual one dependent upon the particular circumstances surrounding the
conveyance.” Seherr-Thoss, ¶ 17, 141 P.3d at 714 (citation omitted). Consistent with
Barton and Tyler, the district court here found Husband’s transfer of the funds to Golden
was presumed to be a gift to Wife. It emphasized the Agreement made clear “all premarital
property of the spouses will remain their separate property, which applies to Wife’s sole
interest in Golden.” The record supports the district court’s finding regarding Wife’s
ownership of Golden. Wife formed Golden about a year prior to the parties’ marriage and
remained its sole owner throughout. The Decoy Avenue lots were titled to Golden before
Husband contributed the $137,500. Husband wrote the $137,500 check to Golden as a
contribution to a project to develop the Decoy Avenue lots. At no time did Wife agree to
convey any ownership in either Golden or the lots to Husband. When the economics of
the project became unworkable, Husband did not ask for the money back; instead, he told
Wife to keep it. While Husband asserts he “testified at trial that he believed his name was
to be placed on the lots,” the district court expressly found he knew how to “create joint
ownership in a business or in a piece of real property…,” but never made any effort to
retitle the lots or correct any alleged error in titling. The district court also found Husband
did not raise the issue until the divorce proceedings.
[¶27] These findings are supported by the record and were not clearly erroneous.
Considering Wife’s evidence, giving her every favorable inference, and leaving out any
conflicting evidence presented by Husband, we conclude the district court properly
determined Husband did not overcome the presumption that his $137,500 contribution to
Golden was a gift to Wife.
[¶28] Husband also argues the $137,500 could not be a gift under Paragraph 7 of the
Agreement because it was not made through an “appropriate written instrument.” The
9
Agreement does not specify what constitutes an “appropriate written instrument.”
However, a check is a written instrument. See Check, BLACK’S LAW DICTIONARY (10th ed.
2009) (“‘. . . a check is an instrument in the form of a bill of exchange, drawn on a bank . .
. and payable on demand’” (quoting Francis B. Tiffany, Handbook of the Law of Banks and
Banking (1912)). See also, Anderson v. State, 196 P. 1047, 1050 (Wyo. 1921) (indicating
a bank check is a written instrument), and Wyo. Stat. Ann. §§ 9-4-206(a), 34-24-106(a),
34-24-132(b), and 40-22-102(a)(xv) (LexisNexis 2023) (all indicating bank checks are
written instruments). Given the court determined the check evidenced a gift from Husband
to Wife, we conclude the check satisfied Paragraph 7’s “appropriate written instrument”
requirement.
[¶29] Finally, Husband challenges the district court’s ruling of a gift to Wife because
Golden is not a party to the case, and jurisdiction over it was therefore absent. In support,
Husband cites this Court’s decision in Nielson v. Thompson, 982 P.2d 709, 712 (Wyo.
1999) for the proposition that the only proper parties to a divorce action are the spouses
seeking a divorce. Nielson involved questions about a third-party creditor’s ability to
intervene in a divorce action. It is inapplicable to this case. The only two parties over
whom the district court exercised jurisdiction here were Husband and Wife.
[¶30] The district court’s determination that Husband’s $137,500 payment to Golden was
a gift to Wife is not clearly erroneous or contrary to law.
2. $100,000 “Gift”
[¶31] Husband also contends wife “converted” or even “embezzled” $100,000 from
Legacy when she wrote four $25,000 checks from one of its accounts, and the district court
erred in concluding the $100,000 was a gift. However, the district court never concluded
Husband made a $100,000 gift to Wife. As the district court stated in its Decision Letter,
Wife testified she wrote and cashed four $25,000 checks from the Legacy account and
deposited the money in a safe deposit box out of concern Husband “spent [money] like
water” and “would end up broke.” She then testified that when Husband was out of money
but wanted to start a new company, VIPS, she contributed the $100,000 to VIPS. While
Husband testified he did not know about those transactions, he also testified as follows:
Q. And do you recall [Wife] issuing a check for the full
$100,000 back to you with the memo: Fund VIP?
A. She put a hundred thousand in there, yes.
Q. She put $100,000 into Vertical Injection?
A. Yes.
[¶32] The district court did not further discuss this $100,000 in its order allocating the
parties’ property and debts. It certainly did not conclude it was a gift. However, it did
award VIPS to Husband as part of the property division. By leaving the $100,000 out of
10
the property distribution, the trial court necessarily accepted Wife’s testimony that she
returned the money by depositing it into VIPS’ account. The trial court is in
the best position to assess the witnesses’ credibility and weigh their testimony. Raymond
v. Raymond, 956 P.2d 329, 332 (Wyo. 1998). We give considerable deference to its
findings. Id. Given the parties’ testimony at trial, this Court will not interfere with the
district court’s treatment of the $100,000, as sufficient evidence existed to support it.
C. Commingling and Abandonment
[¶33] Husband also claims the district court erred by declining to find Husband and Wife
commingled their assets. Specifically, he asserts he did not make gifts to Wife when he
contributed funds to assets eventually set over to her, including the $137,500 payment to
Golden, improvements to the Gillette residence, and “seed” money for her businesses.
Husband claims instead their assets became commingled and the district court should have
inferred a commingling provision in the Agreement to give him an interest in the assets,
divided everything under § 20-2-114(a), or concluded the parties abandoned the
Agreement.
[¶34] In addition to finding the $137,500 check to Golden was a gift, the district court
found “any contributions made by Husband to the property allocated to Wife as her
individual property in the pre-marital agreement will not be compensated and will be
viewed as spousal gifts.” It did so after concluding the Agreement was clear and
unambiguous and it would be improper to supplement it with a commingling provision
because it could divide property in accordance with its express terms. It also concluded
the issue of commingling was moot considering the gift determinations. We agree in both
respects. It would have been improper for the district court to supplement the Agreement
by implying a commingling provision in the Agreement and distributing the assets
accordingly. In re CDR, ¶ 30, 351 P.3d at 270-271 (Wyo. 2015); Gumpel, ¶ 42, 393 P.3d
at 1293. In addition, a commingling determination became unnecessary once the district
court concluded distribution of all the assets and debts was governed by the Agreement
and § 20-2-114(a).
[¶35] Regarding Husband’s assertion the parties abandoned the Agreement by
commingling their assets, it too is moot because the district court found Husband’s
contributions were spousal gifts under Paragraph 7 of the Agreement. In addition, Husband
never raised the abandonment issue before the district court or challenged the
enforceability of the Agreement. Instead, Husband testified at trial that he was not
challenging the enforceability of the Agreement:
Q. So is it fair for the Court and me to assume, then,
because we’re here at trial you’re challenging the
enforceability of the prenup?
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A. I don’t know that I would say that. All I’m saying is
we had lots of agreements over the years that I was going to
put money into her house and everything else that we both
agreed to. She took the money, and now she wants to renege
on the stuff that she said we was going to do. As husband and
wife, we don’t run down to a lawyer every single time and say,
hey can we get this signed right here? That’s ludicrous.
Q. So I guess I’m kind of confused then. Are you
challenging the prenup, the enforceability of the prenup as
written or not?
A. I don’t think we’re enforcing – I don’t think we’re –
say it again.
Q. Are you challenging the enforceability of the
prenup?
A. No, I don’t think we’re necessarily challenging the
enforceability of the prenup, no.
[¶36] We will not consider the issue of abandonment for the first time on appeal. Willis
v. Davis, 2013 WY 44, ¶ 21, 299 P.3d 88, 94 (Wyo. 2013); Washington v. State, 2011 WY
132, ¶ 15, 261 P.3d 717, 721 (Wyo. 2011).
III. Equitable Distribution of the Parties’ Remaining Assets and Debts.
A. General Property Division
[¶37] Husband generally challenges the district court’s division of property by alleging it
did not properly utilize § 20-2-114(a). Husband asserts, at a minimum, the district court
should have ordered a repayment of his “traceable proceeds.” “We review the district
court’s division of marital property … for an abuse of discretion.” Hyatt v. Hyatt, 2023
WY 129, ¶ 11, 540 P.3d 873, 880 (Wyo. 2023) (citing Conzelman v. Conzelman, 2019 WY
123, ¶ 15, 453 P.3d 773, 778 (Wyo. 2019)). “The ultimate question in determining whether
an abuse of discretion occurred is whether the trial court could have reasonably concluded
as it did.” Metz v. Metz, 2003 WY 3, ¶ 6, 61 P.3d 383, 385 (Wyo. 2003) (citing Horn v.
Welch, 2002 WY 138, ¶ 8, 54 P.3d 754, 758 (Wyo. 2002)). “We will not disturb a property
division in a divorce case, except on clear grounds, as the trial court is usually in a better
position than the appellate court to judge the parties’ needs and the merits of their
positions.” Id. (citations omitted). An abuse of discretion will be found, however, “when
‘the property disposition shocks the conscience of this Court and appears to be so unfair
and inequitable that reasonable people cannot abide it.’” Hyatt, ¶ 11, 540 P.3d at 880
(quoting Innes v. Innes, 2021 WY 137, ¶ 16, 500 P.3d 259, 262 (Wyo. 2021)).
[¶38] The district court’s exercise of discretion in distributing property during a divorce
is guided by § 20-2-114(a):
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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.
[¶39] The district court need not afford any particular weight between the statutory
considerations, and there are no hard and fast rules governing property division. Malli v.
Malli, 2020 WY 42, ¶ 16, 460 P.3d 245, 249 (Wyo. 2020) (citations omitted); see also
Stoker v. Stoker, 2005 WY 39, ¶ 22, 109 P.3d 59, 65 (Wyo. 2005). Furthermore, the statute
does not require an equal division of property. Engebretsen v. Engebretsen, 2022 WY 164,
¶ 24, 522 P.3d 156, 163 (Wyo. 2022). “[I]n evaluating the position in which the parties
will be left after the divorce, it is necessary to consider not only to whom property will be
awarded, but also who will be responsible for any debt relating to that property.” Dutka v.
Dutka, 2023 WY 64, ¶ 43, 531 P.3d 310, 322 (Wyo. 2023) (citations omitted). Finally, the
court is to take all marital property into account when deciding how to allocate property
among the parties. Hoffman v. Hoffman, 2004 WY 68, ¶ 12, 91 P.3d 922, 925 (Wyo. 2004).
A just and equitable division of property in a divorce case may consider a spouse’s separate
property. Id.[¶40] Here, joint marital assets remained for the court to consider under § 20-2-114(a)
after it applied the Agreement as written. Contrary to Husband’s assertion, the district
court applied § 20-2-114(a) to the marital assets not covered by the Agreement. It referred
to Plaintiff’s Exhibit 38, which listed the parties’ total assets, including those acquired
before the marriage and during the marriage. Among the most significant of the remaining
assets not covered by the Agreement were the three businesses Husband formed after the
parties married, Legacy, VIPS, and the Gas Max. The court awarded all three to Husband
and only allowed Wife to retain her original 10% interest in Legacy. The district court also
awarded Husband the Arkansas residence, a 2013 Chevy Camaro (which was jointly titled),
certain bank accounts and investment accounts, his revocable trust, and other
miscellaneous assets. Along with Golden and Capital and her 10% interest in Legacy, Wife
received the Gillette residence (and its mortgage), certain bank and investment accounts,
and her individual trust. The parties retained the personal property and jewelry they owned
prior to the marriage, as well as jewelry worn during the marriage. Each party was ordered
responsible for 50% of joint credit card debt and 100% of his or her own credit card debt.
Ultimately, the trial court concluded its decision would leave both parties “in a comfortable
position … with sufficient assets and means for income to meet the needs of life.” We find
the trial court did not abuse its discretion. Its conclusion that the division of property was
fair, equitable, and would keep the parties well-situated financially was not in error.
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[¶41] Husband also argues he should have been given an interest in “the assets or
businesses” he invested in, or at the very least repayment of “traceable proceeds.” His
argument is one conclusory sentence that cites to one case, with no analysis. We do not
consider issues unsupported by cogent argument or citation to pertinent authority, and
therefore decline to consider the issue of traceability. Baer v. Baer, 2022 WY 165, ¶ 38,
522 P.3d 628, 640 (Wyo. 2022) (stating when a party only mentions an argument in the
statement of the issues, it will not be considered).
B. Good Faith and Unclean Hands
[¶42] Husband also makes the equitable argument that Wife failed to act in good faith
when she entered into the Agreement and throughout the marriage. He claims that because
of her “unclean hands,” the equities in the distribution of marital property weigh in favor
of Husband. Husband makes various accusations about Wife, many without any record
citation at all, including that she stole, lied, and committed perjury. To the extent these
accusations go to the “merits” of the parties under § 20-2-114(a), the district court made
its findings clear:
When assessing the merits of the parties [in accordance with §
20-2-114(a)], the Husband in this matter did seem to act out in
a manner while this matter was pending which the court finds
disconcerting by filing a complaint with law enforcement
alleging that the Wife committed acts of forgery. The
complaints were revealed to be unfounded but none the less
[sic] given that the Wife is involved in the real estate industry,
allegation[s] of that nature could place her professional
reputation in peril. Husband further contacted professional
associates and businesses with whom the Wife does business
and made statements to cast her in an unfavorable light and
even went so far as to disseminate those statements to Wife’s
Father.
The district court’s findings regarding the parties’ conduct and respective merits are
supported by the record and are not clearly erroneous. The district court did not abuse its
discretion in its assessment of the merits of the parties under § 20-2-114(a).
C. Tax Decision
[¶43] Finally, Husband argues the district court “should have never made the parties file
a joint [tax] return” and should have “declare[d] the $140,000 [prepayment] go directly to
[Husband].” As previously explained, the district court considered these tax issues in a
pretrial motion and entered an order requiring the parties file a joint return for 2021, stating
their liability on the return as “joint and several.” At trial, the court heard extensive
14
testimony from the parties and each of their experts regarding the appropriate split of tax
liabilities and the $140,000 prepayment. This included Husband’s testimony that he
prepaid the $140,000 from his trust account and expert testimony regarding the benefits of
the parties filing jointly. Ultimately, the district court ordered “the parties shall file joint
tax returns for the years of 2021 and 2022. Each party shall be responsible for their share
of any tax obligation in proportion to their individual income.”
[¶44] Husband’s argument heading on this issue reads as follows:
The trial court’s tax ruling should be clarified, where clearly
the couple should not have been made to file a joint return,
where there was a $140,000.00 tax payment made by
Appellant to the IRS with personal funds with his social
security number denoted on the check for payment of his taxes.
In the body of his argument, Husband restates that same sentence, recites his testimony and
the district court’s decision, and states he “should be allowed $140,000.00 to be applied
against his taxes, married filing separately, and a return of any refund to him personally.”
He does not provide any pertinent legal authority or cogent argument for his position that
he should not be required to file a joint tax return with Wife for 2021 or that he is solely
entitled to the $140,000. He also does not provide any explanation as to how the district
court abused its discretion in this portion of its decision. Absent cogent argument or
citation to pertinent legal authority, we will not consider this issue on appeal. Baer, ¶ 38,
522 P.3d at 640 (citing Hodson v. Sturgeon, 2017 WY 150, ¶ 6, 406 P.3d 1264, 1265 (Wyo.
2017)).
[¶45] Husband has not shown the district court failed to properly distribute the assets not
controlled by the Agreement, or otherwise abused its discretion in the distribution of assets
and debts. The trial court’s distribution does not shock the conscious of this Court.
IV. Attorney Fees and Costs.
[¶46] Wife asserts this Court should award her appellate attorney fees under W.R.A.P.
1.03 as a sanction for Husband’s deficient briefing. For the same reasons that we declined
to summarily affirm the trial court as a sanction for the deficiencies in Husband’s brief, we
decline to award Wife attorney fees.
[¶47] Wife also claims she is entitled to attorney fees under the fee-shifting provision of
the Agreement, which states:
Should any party to this Agreement retain counsel for the
purposes of enforcing or preventing the breach of a provision
of this Agreement, including, but not limited to, by instituting
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any action or proceeding to enforce any provision of the
Agreement, for damages by reason of any alleged breach of
any provision of this Agreement, for a declaration of such
party’s rights or obligations under the Agreement or for any
other judicial remedy relating to it, then the prevailing party
shall be entitled to be reimbursed by the losing party for all
costs and expenses so incurred, including, but not limited to,
reasonable attorneys’ fees and costs for the services rendered
to such prevailing party.
[¶48] Wyoming generally applies the American rule, which makes the parties responsible
for their own attorney fees. Circle C Res. v. Hassler, 2023 WY 54, ¶ 8, 530 P.3d 288, 292
(Wyo. 2023). However, a prevailing party may be reimbursed for fees when provided for
by a contract. Id. (citations omitted). “Where a contract allows the award of attorney’s
fees, that includes fees incurred on appeal.” Kinstler v. RTB S. Greeley, Ltd. LLC, 2007
WY 98, ¶ 13, 160 P.3d 1125, 1129 (Wyo. 2007) (citing Cline v. Rocky Mountain, Inc., 998
P.2d 946, 953 (Wyo. 2000)). Nevertheless, even when a valid contractual provision
for attorney fees exists, courts have discretion to allow only such sums as are reasonable.
The court may also disallow attorney fees altogether if such recovery would be
inequitable. Stafford v. JHL, Inc., 2008 WY 128, ¶ 19, 194 P.3d 315, 318 (Wyo. 2008)
(citing Dewey, ¶ 50, 38 P.3d at 420). See also, Shepard v. Beck, 2007 WY 53, ¶ 17, 154
P.3d 982, 989 (Wyo. 2007); Castleberry v. Phelan, 2004 WY 151, ¶ 12 n. 2, 101 P.3d 460,
463–464 n.2 (Wyo. 2004).
[¶49] Whether fee-shifting provisions apply in a particular case depends on the
circumstances. See Douglas v. Jackson Hole Land Tr., 2020 WY 69, ¶ 23, 464 P.3d 1223,
1230 (Wyo. 2020). In Douglas, we concluded the parties’ contractual fee-shifting
provision allowing recovery of attorney fees incurred in enforcing an easement did not
apply to a declaratory judgment action:
Ms. Douglas does not request an order compelling any
particular action, nor does JHLT request an order compelling
her to do or refrain from doing something. Instead, the parties
merely seek an interpretation of the agreement. See Chapman
v. Engel, 372 Ill.App.3d 84, 310 Ill. Dec. 6, 865 N.E.2d 330,
333 (2007) (“[A] fee-shifting provision tied to an action to
‘enforce’ a lease does not apply in a declaratory judgment
claim asking that the parties’ rights under the lease be declared.
The reason? Declaring rights is not the same as enforcing
obligations.”). Had the contracting parties intended the costs
and fees provision of the agreement to apply to an action
seeking an interpretation of any of the terms of the agreement,
they easily could have said so. They did not.
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Id., ¶ 23, 464 P.3d at 1230.
[¶50] This divorce case is analogous to Douglas. Neither party retained counsel to enforce
or prevent the breach of a provision of the Agreement. Wife retained counsel when she
filed for divorce, and Husband retained counsel to defend the divorce action. Although
Husband raised arguments pertaining to the Agreement below and on appeal, that does not
implicate the fee-shifting provision of the Agreement. The Agreement only contemplates
the prevailing party be entitled to reimbursement for attorney fees by the losing party if
either party “retain[s] counsel for the purposes of enforcing or preventing the breach of a
provision of [the] Agreement.” Accordingly, we deny Wife’s request for attorney fees.
CONCLUSION
[¶51] The district court did not err in its interpretation and application of the Premarital
Agreement, nor did it abuse its discretion in its property division pursuant to Wyo. Stat.
Ann. § 20-2-114(a). Wife is not entitled to attorney fees under W.R.A.P. 1.03 or the
Premarital Agreement.
[¶52] Affirmed.
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