Benoit Jean Francois Xavier Pellet v. Anita Berwind Strawbridge Pellet

THE SUPREME COURT, STATE OF WYOMING
2022 WY 65APRIL TERM, A.D. 2022
May 27, 2022
BENOIT JEAN FRANCOIS XAVIER
PELLET,
Appellant
(Defendant),
S-21-0204
v.
ANITA BERWIND STRAWBRIDGE
PELLET,
Appellee
(Plaintiff).
Appeal from the District Court of Teton County
The Honorable Timothy C. Day, Judge
Representing Appellant:
Devon P. O’Connell, Dustin J. Richards, and Crystal Dawn Stewart of Pence and
MacMillan, LLC. Argument by Ms. O’Connell.
Representing Appellee:
John Graham and Julie A. O’Halloran of Geittmann Larson Swift LLC.
Argument by Mr. Graham.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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.
FENN, Justice.
[¶1] Benoit Pellet (“Husband”) appeals several orders entered by the district court in his
divorce proceedings with Anita “Nini” Pellet (“Wife”). He argues the district court erred
by enforcing the parties’ Mediated Settlement Agreement (“MSA”) and incorporating its
terms into a decree of divorce. Husband further claims the district court erred when it
denied his motion for sanctions for Wife’s alleged failure to disclose assets, and when it
denied his motion to dismiss for forum non convieniens. We affirm.
ISSUES
[¶2] Husband presents three issues on appeal, which we restate as follows:
1. Did the district court err when it found the MSA was
binding and enforceable?
2. Did the district court abuse its discretion when it found
Husband’s motion for sanctions was moot?
3. Did the district court abuse its discretion when it denied
Husband’s motion to dismiss for forum non conveniens?
FACTS
[¶3] The parties were married on September 5, 1992, in Scarborough, Maine, and they
have three adult children. For the first twenty years of their marriage, the parties resided
primarily in France, but they also spent time at a residence they purchased in 2008 in
Scarborough, Maine. In 2012, the parties moved to Jackson, Wyoming, and purchased a
home in 2015. The parties also purchased an apartment in Paris, France, in 2018. Although
the apartment was purchased with proceeds generated from the sale of jointly owned
property, Husband unilaterally placed the apartment under the ownership of a French
corporation named SCI Les Triples.1 Husband and the parties’ three adult children own
interests in the SCI.
[¶4] The parties separated on May 8, 2019. After the separation, Husband moved back
to France and resided in the Paris apartment. Wife filed for divorce on August 2, 2019, in
Teton County, Wyoming. On November 19, 2019, Husband filed a motion to dismiss the
complaint alleging he had not been properly served. Wife asked for additional time to
accomplish proper service. The district court granted Wife an additional sixty days to serve
1
SCI stands for Société Civile Immobilière, which is a type of French corporation used to circumvent
France’s default heirship rules and inheritance tax. Jean-Marc Tirard, The French Perspective, 19 Int’l L.
Practicum 142, 148–49 (Autumn 2006).
1
Husband. Wife took steps to serve husband in accordance with the French Civil Code and
the Hague Convention.
[¶5] On April 2, 2020, Husband filed a second motion to dismiss the complaint, arguing
he still had not been properly served. This motion also asked the district court to dismiss
the action on the grounds of forum non conveniens. Husband alleged France was the more
appropriate forum because the parties executed a contract in France in 2018, called a
“matrimonial property regime,” whereby they agreed to utilize French law in matters of
property distribution.2 Husband alleged the case would proceed more efficiently in France
because there would be fewer errors due to faulty translation or misinterpretation of French
law. Husband indicated he had initiated a divorce proceeding in France on February 6,
2020, and a hearing was set in that case on May 27, 2020.
[¶6] In her response to the second motion to dismiss, Wife asserted she had properly
served Husband. She set forth a detailed analysis of why Wyoming was a more convenient
forum than France. She alleged the parties had significant contacts with Wyoming, and
the case should remain in her chosen forum. Although she acknowledged the parties signed
the matrimonial property regime agreement in France, she asserted the document did not
have to be interpreted or enforced by a French court.
[¶7] The district court denied the second motion to dismiss in part, finding service was
properly accomplished under French law and the Hague Convention. The district court
reserved ruling on the inconvenient forum portion of the motion and set a status conference
to discuss the French divorce case. At the status conference, the parties informed the
district court the hearing in the French divorce action had been postponed until November
or December 2020. The district court requested additional briefing on the effect of the
matrimonial property regime agreement.
[¶8] On August 17, 2020, the district court denied Husband’s motion to dismiss and
concluded the matrimonial property regime agreement did not contain a forum selection
clause, Wyoming courts were capable of applying French law, and the case should remain
in Wife’s chosen forum. Husband appealed the district court’s order, but his appeal was
dismissed for lack of jurisdiction.3
[¶9] The parties agreed to mediation. The mediation date was changed multiple times
because Husband retained new counsel and claimed Wife had not disclosed key financial
information about her interest in her family’s trusts. The mediation was held on February
2
Although the matrimonial property regime agreement was executed in 2018, it stated it was intended to
be retroactive to September 5, 1992. Throughout the record, the parties were inconsistent with how they
characterized this document. Sometimes it was referred to as prenuptial or an antenuptial agreement and
other times it was referred to as a postnuptial agreement. For the sake of clarity, we will refer to it as the
matrimonial property regime agreement.
3
Pellet v. Pellet, S-20-205 (Wyo. Oct. 19, 2020) (order dismissing appeal).
2
17–19, 2021, and, after a two-and-a half-day mediation, the parties executed the MSA,
which was signed by both parties and their respective attorneys, on February 19, 2021. The
MSA stated:
This Agreement resolves all outstanding issues in the civil case
pending in the Ninth District Court of Fremont [sic] County as
Civil No. 18043. The terms of this Agreement are binding on
Nini and Benoit. Both parties recognize the terms of this
Agreement are enforceable under W.R.C.P. 40. Both parties
were represented by legal counsel and had enough time to
consider all terms, consult with their respective attorneys about
all terms, and enter into the Agreement freely and voluntarily.
The MSA was executed as “a full, final and binding settlement agreement.”
[¶10] The MSA divided the parties’ real property specifying Husband “shall receive” the
apartment in Paris, France, and Wife “shall receive” the Maine and Wyoming residences.
The MSA also divided the parties’ personal property, bank accounts, investment accounts,
and airline miles. Because Wife received two pieces of real property, she was required to
make a substantial cash equalization payment to Husband. The MSA declared each party
would be “solely responsible for taxes, including capital gain taxes, related to the assets
awarded to him and her[.]” The MSA allowed Husband to reside in the Maine residence
until October 2021, except for the last two weeks of July and the first two weeks of August.
[¶11] Wife’s attorney was assigned to prepare a final marital settlement agreement
incorporating the terms of the MSA. However, the MSA stated if the parties could not
agree on a final form for the agreement within thirty days, “this document shall serve as
the Agreement of the parties and may be used by either party to facilitate final resolution
of the case including a request to incorporate the terms of this Agreement in a final
Judgment and Decree of Divorce.”
[¶12] Shortly after the mediation, Husband contacted Wife claiming the Paris apartment
portion of the MSA had “enormous problems” under French law. He asserted the Paris
apartment could not be transferred to him as his separate property without the consent of
the parties’ adult children, and the children had informed him they would not consent to
the transfer or sale of the apartment. He also alleged he would incur unanticipated tax
consequences if the Paris apartment was sold. Because of these alleged problems, Husband
refused to sign a final settlement agreement or a stipulated divorce decree.
3
[¶13] On April 6, 2021, Wife asked the district court to enter a decree of divorce that
divided the parties’ marital property in accordance with the MSA.4 She informed the
district court the parties were unable to agree on the final form of a settlement agreement
or a stipulated decree. Wife asserted Husband was attempting to void the MSA by
contacting the parties’ adult children after the mediation and instructing them to withhold
their consent to the transfer or sale of the Paris apartment. Wife asked the district court to
enforce the MSA and enter a decree of divorce that incorporated its terms.
[¶14] On April 20, 2021, Husband asked the district court to vacate the MSA and find it
was void due to mutual mistake, fraud, impracticability, or commercial frustration.5
Husband alleged Wife misrepresented during mediation the children would consent to the
transfer of the Paris Apartment, and he relied on this representation when he signed the
MSA. He asserted there was no meeting of the minds because of this misrepresentation,
and the MSA was unenforceable. Husband requested an evidentiary hearing on his motion.
[¶15] In response, Wife admitted she spoke with one of the children during the mediation,
and based on that conversation, she represented there was support for Husband having the
exclusive use of and rights over the Paris apartment. She argued Husband was precluded
from asserting mutual mistake, impracticability, or commercial frustration to void the MSA
because he instructed the children to refuse their consent. Wife alleged Husband made
incorrect statements about the ownership structure of the SCI, and he had “misrepresent[ed]
the rights and ownership of the Paris apartment.” She explained an SCI is very similar to
a limited liability company, except an SCI distinguishes between current interest owners
and future interest owners. When Husband created the SCI, he elected to identify himself
as the sole current interest owner and their adult children as the future interest owners.
Wife asserted Husband had the exclusive use of and management authority over the assets
of the SCI because he was the managing member and sole current interest owner. She
argued he had the exclusive right to live in the Paris apartment, and he could sell it and
apply the proceeds to the purchase of other real estate. Should he do so, he would then be
entitled to occupy, rent, sell, or trade that real estate for other assets. Accordingly, Wife
asked the district court to grant the divorce and enforce the MSA.
[¶16] On July 1, 2021, Wife filed an emergency motion indicating Husband refused to
vacate the Maine residence for the last two weeks of July and first two weeks of August,
as he was obligated to do under the MSA. She asked the district court to enter an
emergency order enforcing this portion of the MSA. The district court set an emergency
hearing on this motion for July 14, 2021.
4
This pleading was not verified. However, on May 27, 2021, Wife filed an affidavit wherein she stated:
“Prior to filing, I reviewed the Motion for Judgment of Divorce filed on April 6, 2021. I verify, under oath,
that all statements in the Motion are true and accurate to the best of my knowledge.”
5
Although this pleading was captioned as a verified motion, the verification page was blank. A signed
verification page was not submitted until May 5, 2021.
4
[¶17] On July 13, 2021, Husband filed a motion for sanctions alleging Wife failed to
disclose her interests in her family’s trusts. He renewed his allegations about Wife’s
fraudulent misrepresentation concerning the children’s consent. He argued Wife should
be sanctioned for this conduct, and the MSA should be set aside. He again requested an
evidentiary hearing.
[¶18] The district court held a hearing on the emergency motion to enforce the MSA on
July 14, 2021.6 The next day, the district court entered its Order on Motions to Enforce,
For Entry of Decree, and to Vacate Settlement. That order indicated the district court ruled
from the bench on the emergency motion. The district court found it had inherent authority
to enforce settlement agreements, and it further found: “In this case, the parties did settle
out of court, with legal advice. Their settlement is evidenced by the written Settlement
Agreement, signed by both parties and their counsel.” The district court determined
Husband had ample notice of his obligation to vacate the Maine residence for the four-
week period, and he had not cited any legal basis for not enforcing this portion of the MSA
either in his briefing or at the hearing. The district court granted the emergency motion
and ordered Husband to vacate the Maine residence for the four-week period.
[¶19] The district court then addressed the motions to enforce or vacate the MSA without
a hearing. It found “pursuant to W.R.C.P. 6 that no hearing [was] required on these two
motions.” The district court held:
18. Husband asserts, after signing the Settlement Agreement,
that he learned later that if he sold the Paris apartment, he
would face tax liabilities. He asserts this is a basis to set the
Settlement Agreement aside, on the basis of no meeting of the
minds, mutual mistake or fraud. He also asserts that due to the
ownership structure for that apartment, the tax consequences
would impact the parties’ adult children and that the children
did not consent to the sale. The parties also contest whether
the sale of the Paris apartment is proper under French law and
under the parties’ French marriage contract. Husband asserts
it is not. Wife asserts these issues were resolved in consultation
with French legal counsel throughout the 2-1/2 day mediation.
Each party nevertheless provides a lengthy legal memorandum
from French counsel on this issue.
6
It appears this hearing was not reported because no transcript of this hearing appears in the record. The
parties did not submit a statement of the evidence pursuant to W.R.A.P. 3.03. The only information
regarding this hearing comes from the district court’s order, which states: “Each party presented testimony
at the July 14 hearing. The testimony was largely based in equity, i.e., whether it [was] fair to require
Husband to move out for four weeks.”
5
19. As noted previously, the Settlement Agreement does not
contemplate the sale of the Paris apartment. The legal
memoranda and apparent dispute center around that potential
sale. This is an issue outside the four corners of the contract,
requiring parole [sic] evidence where no ambiguity exists
within the contract.
20. The Court can appreciate the dispute between the parties
but finds the procedural posture of the dispute is not ripe for
review. The Court finds it appropriate to enter the Settlement
Agreement without an adjudication of the lengthy and detailed
allegations raised by the parties at this time.
21. The Court has reviewed the Settlement Agreement. It is
not ambiguous. As an unambiguous contract, the Court is
limited to the four-corners of that agreement. The agreement
does not indicate or suggest a sale of the Paris apartment or that
performance of the Agreement is contingent on that sale or any
other event. According to the Agreement, the Paris apartment
is Husband’s and any tax liability for his property is his.
22. After reviewing the lengthy briefing and attachments for
both motions, the Court finds and concludes that the decree
should be entered, incorporating the Settlement Agreement.
The motion to vacate should be denied. This conclusion is
consistent with the strong policy in Wyoming to enforce
settlement agreements. This principle is true in the family law
context as it is in any other civil case.
23. “Spouses may define their obligations to one another in a
written agreement.” Lipps v. Lloyd, 967 P.2d 558, 560 (Wyo.
1998) (citing David v. David, 724 P.2d 1141, 1143 (Wyo.
1986)). “Property settlement agreements entered into by the
parties prior to a divorce action are generally recognized and
given force and effect in the decree.” Prentice v. Prentice, 568
P.2d 883, 886 (Wyo. 1977); Lipps, 967 P.2d at 560-561 (courts
favor property settlements); Rinehart v. Rinehart, 52 Wyo.
363, 75 P.2d 390, 391-392 (1938).
24. A property settlement agreement is regarded as a contract,
even though it is adopted in the decree, and contract law
principles apply. Prentice, 568 P.2d at 886 (citing Ulrich v.
Ulrich, 366 P.2d 999, 1002 (Wyo. 1961)). Where the parties
6
have entered into a property settlement agreement, courts are
to “enforce the plain language of the agreement even if an
argument can be made that a particular provision of the
agreement is not necessarily consistent with one of the parties’
[sic] interests.” Asherman v. Asherman, 2009 WY 141, ¶ 11,
221 P.3d 302, 305 (Wyo. 2009).
25. This conclusion is also consistent with Paragraph 10 of the
parties’ Settlement Agreement which provides, in sum, that the
Agreement is self executing after thirty days. That thirty-day
period expired.
The district court denied Husband’s motion to vacate the MSA and stated a decree of
divorce would be entered by a separate order. The district court found Husband’s motion
for sanctions was moot. The district court entered the Decree of Divorce, which
incorporated the terms of the MSA. This appeal timely followed.
DISCUSSION
I. Enforcement of the Mediated Settlement Agreement
[¶20] The district court found the parties intended to and did enter into a binding
settlement agreement when they executed the MSA. It found the MSA was unambiguous.
Husband does not challenge these rulings on appeal. Instead, he asserts the district court
abused its discretion by not holding an evidentiary hearing to determine whether the MSA
was void due to mutual mistake, misrepresentation, fraud, or impossibility before deciding
to enforce the MSA on its terms. He contends the district court’s orders “should be
reversed because the district court clearly failed to consider or misinterpreted the
unassailable facts that the Paris Apartment cannot be transferred to [Husband].” If the
MSA is not void, he asserts it should be set aside because it created an inequitable property
division.
A. Deciding the Motion without a Hearing
[¶21] Motions are governed in part by Rule 6(c)(4) of the Wyoming Rules of Civil
Procedure, which states in relevant part: “A request for hearing may be served by the
moving party or any party affected by the motion within 20 days after service of the motion.
The court may, in its discretion, determine such motions without a hearing.” This rule
expressly gives the district court the discretion to decide a motion without a hearing. See
In re U.S. Currency Totaling $7,209.00, 2012 WY 75, ¶ 19, 278 P.3d 234, 239 (Wyo.
2012). “A district court enjoys considerable latitude in determining the procedural scheme
it will follow in reaching its determinations, and we will not reverse such procedural
decisions absent an abuse of discretion.” Simek v. Tate, 2010 WY 65, ¶ 12, 231 P.3d 891,
7
896 (Wyo. 2010) (citing Meyer v. Hatto, 2008 WY 153, ¶ 11, 198 P.3d 552, 555 (Wyo.
2008)). “Judicial discretion is a composite of many things, among which are conclusions
drawn from objective criteria; it means exercising sound judgment with regard to what is
right under the circumstances and without doing so arbitrarily or capriciously.” Sears v.
Sears, 2021 WY 20, ¶ 13, 479 P.3d 767, 772 (Wyo. 2021) (quoting Johnson v. Clifford,
2018 WY 59, ¶ 8, 418 P.3d 819, 822 (Wyo. 2018)). When deciding if the district court
abused its discretion, the ultimate issue is whether it “could reasonably conclude as it did.”
Id.[¶22] Rule 7(b)(1)(B) of the Wyoming Rules of Civil Procedure requires motions to “state
with particularity the grounds for seeking the order.” We have previously recognized a
complaint should show the plaintiff is entitled to relief. Tuttle v. Lee, 2018 WY 104, ¶ 8,
425 P.3d 998, 1000 (Wyo. 2018) (stating a motion to dismiss will be sustained when the
complaint shows on its face the plaintiff is not entitled to relief); see also Harris v. Grizzle,
599 P.2d 580, 583 (Wyo. 1979) (citing Watts v. Holmes, 386 P.2d 718, 719 (Wyo. 1963)).
The same holds true for motions:
Courts cannot grant a hearing in every motion filed, since those
of a frivolous nature would impede the progress of those which
are meritorious; thus, where the motion is clearly without
substance and only another attempt to burden the court with
frivolous contentions, a hearing is unnecessary and the motion
should be denied. In addition, a court need conduct a hearing
only when the allegations and moving papers are sufficiently
definite, specific, nonconjectural, and detailed enough to
conclude that a substantial claim is presented and that there are
disputed issues of material fact which will affect the outcome
of the motion.
61A Am. Jur. 2d Pleading § 337 (Feb. 2022) (footnotes omitted). If a motion does not
show the movant is entitled to relief, a district court acts within its discretion by denying
the motion without a hearing. See generally Schneider v. State, 2022 WY 31, ¶ 16, 505
P.3d 591, 595 (Wyo. 2022) (finding a court must hold a hearing on an application to remove
an ignition interlock device if an applicant makes a prima facie showing of good cause);
49 C.J.S. Judgments § 458 (“The applicant is entitled to a hearing . . . if the material
submitted by the applicant contains allegations of operative facts demonstrating that relief
is warranted, and the facts sufficient to support granting relief are challenged by the
opposing party.”) (footnote omitted). We will therefore evaluate whether Husband’s
8
motion7 made a prima facie showing8 that he was entitled to relief, requiring the district
court to hold a hearing to receive additional evidence.
1. Mutual Mistake
[¶23] We will initially address Husband’s argument the MSA is void due to mutual
mistake. If we determine a mutual mistake exists, we may reform or cancel a contract.
Hansen v. Little Bear Inn Co., 9 P.3d 960, 964 (Wyo. 2000) (citing Mathis v. Wendling,
962 P.2d 160, 164 (Wyo. 1998)). Husband asserts the parties were mutually mistaken
about whether their adult children would consent to the transfer of the Paris apartment. In
the alternative, he argues the parties were mutually mistaken in their belief “the Paris
apartment could be divided and transferred to [Husband] as his sole and separate property.”
He contends the district court should have considered additional evidence before it
enforced the MSA “by its terms alone.”
[¶24] While parol evidence is usually inadmissible when a contract is unambiguous, we
make exceptions in the case of mutual mistake.9 Mathis v. Wendling, 962 P.2d 160, 164
(Wyo. 1998). “A contract is voidable on grounds of mutual mistake when both parties
independently make a mistake at the time the contract is made as to a basic assumption of
the contract, unless the party seeking avoidance bears the risk of the mistake.” Kendrick v.
Barker, 2001 WY 2, ¶ 19, 15 P.3d 734, 740 (Wyo. 2001) (citing Restatement (Second) of
Contracts § 152 (1981)).
The mistake, however, must have been a mutual one. There
must have been a meeting of the minds and a contract actually
entered into, but, by reason of the mistake, the instrument as
written does not express what was really intended by the
7
Husband attached several documents to his motion. These attachments consisted primarily of emails and
other documents containing hearsay that would not be admissible evidence under the Wyoming Rules of
Evidence. See Heimer v. Heimer, 2021 WY 97, ¶¶ 21–25, 494 P.3d 472, 479–80 (Wyo. 2021). Although
Husband verified his pleading and swore the statements in his motion were true and correct to the best of
his knowledge, this does not transform the hearsay statements in these documents into admissible evidence.
Husband could have attached affidavits from the adult children or other witnesses to his motion, but he did
not. Wife’s motion and response to Husband’s motion suffer from the same deficiency. We will therefore
only consider the sworn statements in the motions, and we will not consider the hearsay statements
contained in the attachments.
8
“Prima facie means ‘[s]uch evidence as is sufficient to establish a given fact, or the group or chain of facts
and which if not rebutted or contradicted, will remain sufficient.’” Schneider v. State, 2022 WY 31, ¶ 15 n.
2, 505 P.3d at 595 n. 2 (Wyo. 2022) (quoting Wyo. Bd of Land Comm’rs v. Antelope Coal Co., 2008 WY
60, ¶ 12, 185 P.3d 666, 669 (Wyo. 2008)).
9
While the district court incorrectly concluded it could not consider parol evidence when determining the
motions to enforce or vacate the MSA, [R. Vol. 3 at 677] we are free to affirm a district court’s ruling on
any basis appearing in the record. Prancing Antelope I, LLC v. Saratoga Inn Overlook Homeowners Ass’n,
Inc., 2021 WY 3, ¶ 41, 478 P.3d 1171, 1182 (Wyo. 2021) (quoting Black Diamond Energy of Delaware,
Inc. v. Wyo. Oil & Gas Comm’n, 2020 WY 45, ¶ 45, 460 P.3d 740, 753 (Wyo. 2020)).
9
parties. Both the mistake and its mutuality must be established
by evidence that is clear and satisfactory.
Cordova v. Gosar, 719 P.2d 625, 641 (Wyo. 1986) (quoting Russel v. Curran, 206 P.2d
1159, 1166–67 (Wyo. 1949). The party claiming the mistake must also establish by clear
and convincing evidence the mistake did not result from his own negligence. Hansen, 9
P.3d at 964 (quoting Patel v. Harless, 926 P.2d 963, 966 (Wyo. 1996)).
[¶25] Mistake means “a belief that is not in accord with the facts.” Hansen, 9 P.3d at 964
(quoting Section 151 of the Restatement (Second) of Contracts (1981)). The word
“mistake” is not used “to refer to an improvident act, including the making of a contract,
that is the result of such an erroneous belief.” Id. (quoting Restatement (Second) of
Contracts, § 151 cmt. a (1981)). Furthermore, the erroneous belief must “relate to the facts
as they exist at the time of the making of the contract,” and a “party’s prediction or
judgment as to events to occur in the future, even if erroneous,” does not constitute a
“mistake.” Id. (quoting Restatement (Second) of Contracts, § 151 cmt. a).
[¶26] We discussed the definition of “mistake” in Hansen. In that case, Mr. Hansen and
Mr. Boling purchased stock in the Little Bear Inn. 9 P.3d at 962. They subsequently agreed
Mr. Boling would purchase Mr. Hansen’s stock. Id. As part of their agreement, Mr. Boling
was required to secure his purchase obligation by obtaining a life insurance policy with a
premium of less than $150.00. Id. at 962–63. However, after the contract was signed, Mr.
Boling learned he was uninsurable at any price. Id. at 963. Mr. Hansen then sought
recission of the contract on the grounds of mutual mistake. Id. The district court found Mr.
Hansen failed to carry his burden of showing mutual mistake. Id. We agreed and found
although neither party believed Mr. Boling would be uninsurable before entering into the
contract, “the failure to adequately predict this result [was] not a mistake of the parties, but
merely poor prognostication.” Id. at 965.
[¶27] Applying this precedent to the facts of this case, Husband cannot use a claimed
mistake about the children’s future consent to the transfer or sale of the Paris apartment to
invalidate the MSA. Even if the parties were mutually mistaken about whether the children
would consent to the transfer or sale of the Paris apartment, this was an erroneous
prediction about a future event. It is not the type of mistake that would allow the district
court to invalidate the MSA under the doctrine of mutual mistake.
[¶28] A party cannot assert the doctrine of mutual mistake if he “bears the risk of the
mistake.” Kendrick, ¶ 19, 15 P.3d at 740 (citing Restatement (Second) of Contracts § 152
(1981)). A party bears the risk of the mistake when “he is aware, at the time the contract
is made, that he has only limited knowledge with respect to the facts to which the mistake
relates but treats his limited knowledge as sufficient.” Id. (quoting Restatement (Second)
of Contracts § 154(b) (1981)). In such a situation, there has been no mistake, but instead
10
“conscious ignorance of the future.” Id. (citing Restatement (Second) of Contracts § 154,
cmt. c (1981)).
[¶29] This rule applies to a party’s knowledge about the ownership of a piece of real
property. Anderson v. Sanchez, 373 P.3d 860 (Nev. 2016). In Anderson, the parties had
signed a memorandum of understanding (“MOU”) which awarded a piece of property to
the husband in exchange for a cash payment to the wife. Id. at 862. After signing the MOU,
the husband attempted to withdraw from the agreement because his sister had an interest
in the property based on an oral contract that had been entered into several years earlier.
Id. The district court denied husband’s motion to set aside the MOU and entered a divorce
decree that incorporated the terms of the MOU. Id. The Nevada Supreme Court affirmed,
finding the husband bore the risk of the mistake. Id. at 863. It found:
If [husband] did not have sufficient knowledge of the legal
consequences of any oral agreement with [his sister], he was
aware of the facts underlying his claim that the Wilson property
was the subject of an equitable trust and therefore not
appropriate for distribution under the MOU, and he could have
pursued the issue further rather than agreeing to settlement. See
Restatement (Second) of Contracts § 154(c) (indicating that the
court may allocate the risk of mistake to a party when it is
reasonable under the circumstances); cf. Janusz v. Gilliam, 404
Md. 524, 947 A.2d 560, 567 (2008) (holding that a mutual
mistake of law was not grounds to rescind a property
settlement agreement particularly where both parties were
represented by counsel during the negotiations and were on
equal footing to know or learn of the relevant law). Thus,
[husband] bore the risk of mistake when he entered into the
MOU despite being aware of his limited knowledge.
Id.[¶30] Consistent with the holding in Anderson, Husband cannot assert there was a mutual
mistake about the transferability of the Paris apartment. Husband was keenly aware the
Paris apartment was owned by the SCI. He unilaterally placed the ownership of the
apartment into the SCI, even though it was purchased with joint funds. Before and during
the mediation, Husband had the opportunity to confer with his French attorney about the
transferability of the apartment under French law. He likewise had the opportunity to
confer with the parties’ children about whether they would consent to such a transfer.
Husband treated his limited knowledge about the transferability of the Paris apartment and
the children’s consent as sufficient and signed the MSA. Husband bore the risk of any
mistake about the transferability of this asset and has not shown the mistake did not result
from his own negligence. We conclude Husband’s motion did not make a prima facie
11
showing he was entitled to invoke the doctrine of mutual mistake to invalidate the MSA.
2. Fraud
[¶31] In Wyoming, we recognize fraud will vitiate a contract. Snyder v. Lovercheck, 992
P.2d 1079, 1089 (Wyo. 1999). Husband alleged Wife committed fraud when she
“affirmatively represented to [him] (through the mediator) that the adult children, who are
the owners of the SCI which owns the Paris apartment, would consent to the transfer.” He
asserted “[t]he issue of consent was misrepresented by [Wife], and thus was fraudulent.”
He also claimed he reasonably relied on Wife’s “misrepresentation” when he signed the
MSA.
[¶32] In a pleading or a motion, fraud must be alleged with “particularity.” See W.R.C.P.
7(b)(1)(B); W.R.C.P. 9(b); Mantle v. North Star Energy & Constr. LLC, 2019 WY 29,
¶ 81, 437 P.3d 758, 786–87 (Wyo. 2019); Bender v. Phillips, 8 P.3d 1074, 1078 (Wyo.
2000); Girard Trust Bank v. Martin, 557 F.2d 386, 389–90 (3d Cir. 1977). To prevail on
a fraud claim, a party must prove by clear and convincing evidence: (1) the defendant made
a false representation intended to induce the plaintiff to act; (2) the plaintiff reasonably
believed the representation was true; and (3) the plaintiff relied on the false representation
and suffered damages as a result. Action Snowmobile & RV, Inc. v. Most Wanted
Performance, LLC, 2018 WY 89, ¶ 9, 423 P.3d 317, 321 (Wyo. 2018). In addition, the
party claiming fraud “must show that the misrepresentation was made intentionally, with
knowledge of its falsity, or that the maker of the misrepresentation was at least aware that
he did not have a basis for making the statement.” Excel Const., Inc. v. HMK Eng’g, Inc.,
2010 WY 34, ¶ 33, 228 P.3d 40, 48–49 (citing Birt v. Wells Fargo Home Mortg., Inc., 2003
Wy 102, ¶ 42, 75 P.3d 640, 656 (Wyo. 2003); Restatement (Second) of Torts § 526 (1977)).
Fraud is never presumed. Mantle, 2019 WY 29, ¶ 81, 437 P.3d at 787 (citing Bitker v. First
Nat’l Bank in Evanston, 2004 WY 114, ¶ 12, 98 P.3d 853, 856 (Wyo. 2004)).
[¶33] In this case, Husband alleged Wife’s statement about the children’s consent was a
fraudulent misrepresentation. However, he never actually alleged Wife’s statement was
false at the time it was made, or she did not have a basis for making the statement. Instead,
he alleged he learned sometime after the mediation the children would not consent to the
transfer. Because Husband failed to allege the essential elements of fraud, his motion did
not make a prima facie showing he was entitled to relief on that ground.
3. Impracticability or Impossibility
[¶34] In the proceedings below, Husband asserted the MSA was impossible to perform,
and thereby asserted the doctrine of impracticability rendered the MSA void. A party to a
contract may invoke the rule of impracticability to excuse his performance “when
supervening circumstances render performance of one of the conditions of the contract
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impracticable.” Star Valley Ranch Ass’n v. Daley, 2014 WY 116, ¶ 26, 334 P.3d 1207,
1213 (Wyo. 2014) (quoting Mortenson v. Scheer, 957 P.2d 1302, 1306 (Wyo. 1998)).
Where, after a contract is made, a party’s performance is made
impracticable without his fault by the occurrence of an event
the non-occurrence of which was a basic assumption on which
the contract was made, his duty to render that performance is
discharged, unless the language or the circumstances indicate
the contrary.
Mortenson, 957 P.2d at 1306 (emphasis omitted) (quoting Restatement (Second) of
Contracts, § 261 (1979)). We have said “[i]mpracticability of performance is a strict
standard that can only be invoked when the circumstances truly dictate the
impracticability.” Mortenson, 957 P.2d at 1306 (citing Barrett v. Ballard, 662 P.2d 180,
184 (Mont. 1980)). The doctrine cannot be invoked “when, under the contract, one party
assumes the risk that fulfillment of a condition precedent will be prevented. The obligor
is expected to provide in the contract for contingencies that are foreseeable.” Mortenson,
957 P.2d at 1306 (internal citations omitted).
[¶35] Husband knew about the ownership structure of the Paris apartment, and he had the
opportunity to consult with French counsel about the feasibility of transferring the
apartment from the SCI to himself. The words “sole and separate property” do not appear
in the MSA. Rather the document merely states Husband “shall receive” the Paris
apartment. We “will not write terms into a contract under the guise of contract
interpretation.” Schell v. Scallon, 2019 WY 11, 433 P.3d 879, 885 (Wyo. 2019) (citing
Gumpel v. Copperleaf Homeowners Ass’n, Inc., 2017 WY 46, ¶ 42, 393 P.3d 1279, 1293–
94 (Wyo. 2017).
[¶36] The district court found the MSA did not indicate or even suggest the performance
of the agreement is contingent on any other event. There is nothing in the MSA to suggest
the children’s consent was a basic assumption on which the contract was made. The parties
could have made the children’s consent a prerequisite for their performance, but they did
not. Therefore, Husband’s motion failed to make a prima facia showing he was entitled to
relief under the doctrine of impracticability. It is not impossible or impracticable for
Husband to “receive” the Paris apartment, even without the children’s consent. By signing
the MSA, Wife disclaimed any interest she might have in the apartment. Husband will
“receive” the Paris apartment, subject to the ownership structure he chose to create. The
MSA can be performed as written, and Husband cannot use the doctrine of impossibility
to void the agreement.
[¶37] Husband’s motion failed to make a prima facie showing he was entitled to relief on
the grounds of mutual mistake, fraud, impracticability, or impossibility. The district court
13
did not abuse its discretion when it denied Husband’s motion to vacate the MSA without a
hearing.
B. Inequitable Property Distribution
[¶38] Husband asserts the Paris apartment must be transferred to him as his sole and
separate property, or the property division in the MSA would be inequitable and must be
set aside. We have stated:
[E]ven though property settlements are favored by the courts
and are generally recognized in Wyoming, the parties cannot
oust a court’s statutory duty to “make such disposition of the
property of the parties as appears just and equitable” by
entering into a property settlement agreement which the judge
cannot in good conscience approve and adopt when granting a
divorce.
David v. David, 724 P.2d 1141, 1143 (Wyo. 1986) (citing Leighton v. Leighton, 261
N.W.2d 457 (Wis. 1978); 24 Am. Jur. 2d Divorce and Separation § [528]). However, a
property settlement incorporated into a decree will not be set aside unless the distribution
would shock the conscience of the court, and it appears to be so unfair and inequitable that
reasonable persons could not abide it. Long v. Long, 2018 WY 26, ¶ 22, 413 P.3d 117, 125
(Wyo. 2018) (citing Kummerfeld v. Kummerfeld, 2013 WY 112, ¶ 7, 309 P.3d 822, 824
(Wyo. 2013). “The question cannot be, What would we have done as trial judges? but must
be and is, Did the trial judge act so outrageously in his property settlement decision as to
constitute an abuse of discretion?” Paul v. Paul, 616 P.2d 707, 714 (Wyo. 1980).
[¶39] The property division in the MSA does not shock the conscience. Husband will
receive the Paris apartment, subject to the alienability restrictions of the SCI, which has
substantial value. He will also receive a substantial cash equalization payment, valuable
cars, paintings, and a wine collection. We cannot say this division is so unfair and
inequitable that reasonable persons could not abide it. Long, ¶22, 413 P.3d at 125. The
district court did not err by enforcing the MSA and incorporating its terms into a decree.
II. Denial of the Motion for Sanctions
[¶40] Husband contends the district court erred when it denied his motion for sanctions
on the basis that it was moot. Husband filed his motion under Rule 37 of the Wyoming
Rules of Civil Procedure. As grounds for the motion, Husband renewed his allegations
Wife failed to disclose her interests in some of her family’s trusts. The district court
determined the motion was moot because the parties entered into a binding settlement
agreement that resolved all outstanding issues.
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[¶41] We review a district court’s rulings on discovery issues, including the issuance or
non-issuance of sanctions, for an abuse of discretion. Herrick v. Jackson Hole Airport Bd.,
2019 WY 118, ¶ 11, 452 P.3d 1276, 1280 (Wyo. 2019). The question is whether the district
court could have reasonably concluded as it did. Sears, ¶ 13, 479 P.3d at 772 (quoting
Johnson, ¶ 8, 418 P.3d at 822).
[¶42] “[T]he central question in a mootness case is ‘whether decision of a once living
dispute continues to be justified by a sufficient prospect that the decision will have an
impact on the parties. [13B Charles Alan] Wright [et al., Federal Practice & Procedure:
Jurisdiction] § 3533 [(3d ed 2008)].’” In re SNK, 2003 WY 141, ¶ 17, 78 P.3d 1032, 1037
(Wyo. 2003) (quoting Sw. Pub. Serv. Co. v. Thunder Basin Coal Co., 978 P.2d 1138, 1142–
43 (Wyo. 1999)). The doctrine of mootness recognizes courts “do not wish to make law,
nor to waste their limited resources, simply to satisfy a litigant’s curiosity or a naked desire
for vindication.” Wright et al., supra § 3533. Mootness questions, like other questions
arising from settlement agreements, should be answered according to the intent of the
parties. Reiman, 838 P.2d at 1187–88 (Wright et al., supra, § 3533.2).
[¶43] The parties intended the MSA to be a full, final, and binding settlement agreement
that would resolve “all outstanding issues” in the divorce action. The MSA provided it
could “be used by either party to facilitate final resolution of the case including a request
to incorporate the terms of this Agreement in a final Judgment and Decree of Divorce.”
The parties intended to resolve all their issues and avoid further litigation when they signed
the MSA. Because the district court found the MSA was valid and enforceable, there was
no reason to allow additional discovery, strike pleadings, enter default, preclude the
introduction of certain evidence at trial, dismiss the case, or impose any of the other
sanctions listed in W.R.C.P. 37. The district court did not abuse its discretion when it
determined the motion for sanctions was moot.
[¶44] The second half of Husband’s motion for sanctions referenced Rule 60 of the
Wyoming Rules of Civil Procedure and asked the district court to set aside the MSA on the
grounds of fraud. He again alleged Wife committed fraud by misrepresenting material
information about the children’s consent during the mediation. This motion suffered from
the same deficiency as his motion to vacate the MSA. It did not allege Wife made the
statement “intentionally, with knowledge of its falsity,” or she “was at least aware that
[s]he did not have a basis for making the statement.” Excel Const., ¶ 33, 228 P.3d at 48–
49. Husband did not allege fraud with particularity, and the district court did not abuse its
discretion when it denied the motion.
III. Forum Non Conveniens
[¶45] As a final argument, Husband argues the district court abused its discretion when it
15
denied his motion to dismiss for forum non conveniens.10 We generally review a district
court’s ruling regarding inconvenient forum for an abuse of discretion. Saunders v.
Saunders, 2019 WY 82, ¶ 10, 445 P.3d 991, 996 (citing Burnham v. Coffinberry, 2003 WY
109, ¶ 8, 76 P.3d 296, 299 (Wyo. 2003); West Texas Utils. Co. v. Exxon Coal USA, Inc.,
807 P.2d 932, 935 (Wyo. 1991)). Husband essentially argues the district court did not
properly weigh the factors we adopted in Saunders.
[¶46] However, earlier in this opinion, we found the parties entered into a valid,
enforceable settlement agreement that was intended to resolve all the pending issues in this
litigation. This would include any issues about whether Wyoming was the proper forum
for this divorce. The parties reduced their contract to writing, and they must abide by its
plainly stated terms. Patel, 926 P.2d at 966. Husband relinquished any claim about
inconvenient forum when he entered into the MSA, and we will enforce this
relinquishment. See Cowboy’s LLC v. Schumacher, 2018 WY 61, ¶ 13, 419 P.3d 498, 502
(Wyo. 2018).
CONCLUSION
[¶47] The district court did not abuse its discretion when it denied the motion to vacate
the MSA without a hearing because Husband’s motion failed to show he was entitled to
invoke the doctrines of mutual mistake, fraud, or impracticability to invalidate the MSA.
The MSA did not create an inequitable property distribution, so the district court did not
err by incorporating the terms of that agreement into a decree of divorce. Because the
MSA was a binding settlement agreement that resolved all the outstanding issues, the
district court did not abuse its discretion when it denied the motion for sanctions as moot.
Further, the MSA resolved any outstanding issues relating to forum non conveniens.
Affirmed.
10
Wife argues this issue is not ripe to be addressed. However, the divorce decree is a final appealable order,
thereby procedurally making the district court’s decision on the inconvenient forum issue reviewable.
16