*1 Furthermore, necessary public statutory limits. the record not to serve the interest sentencing private that and Holmes had no interest in this case reflects gave and substantial consid- judge careful served. to all factors in determin-
eration relevant Affirmed. impose. appropriate sentence to ing an no error in connection There is reviewable Justice, CARDINE, specially concurring. the sentence. with case. I concur in the result of this I argument, casually at oral Somewhat imposed continue to that sentences assert that appellant suggested for the counsel appeal are for abuse of reviewable as a appeal court should consider the discretion. certiorari, invoking apparently State, concepts Wright v. articulated That far short of supra. approach so case in
demonstrating a rare and unusual State, Wright supra, v.
accordance the appellant and
that we must admonish
counsel that we will even consider remedy of certiorari
invocation such an informal context. NATION, Chabak, Susan n/k/a (Plaintiff), Appellant diamet
The second claim error is existing authority in this rically opposed to v. State, Wyo., In 562 P.2d Raigosa v. state. (Defendant). NATION, Appellee David this court held that No. 85-173. inquest “[tjhere requirement is no that an prosecution for murder.” be held before Supreme Wyoming. Court holding is the justification The March pertinent now as it then. The same was 7-4-201, (1984 Cum. part of W.S.1977 7-81,
Supp.) is W.S.1957 identical
(1975 Cum.Supp.) Raigosa. issue at present issue con
appellant’s effort to
trary precedent to clear this case borders appeal. presentation specious of a
upon the State, supra, noted Raigosa
In v. we inquest is to aid purpose of a coroner’s that a was not
in the determination death light
unlawfully of the record caused.
in this case establishes five bullet which body and Holmes’
wounds the victim’s guilty, inquest coroner’s would
plea futility. Holmes
have been an exercise ele plea all the essential
admitted his including fact that
ments of offense unlawfully. Tomp had killed victim
he
(1985);
State, Wyo.,
kins v. State, Wyo., 704 P.2d
Kallas State, Wyo.,
Armijo State, Wyo., 623 P.2d
Small plea the district court resolved
Holmes’ of con
any matters that could have been jury. inquest to a coroner’s was
cern *2 Peek, Casper, appellee.
Richard H. for THOMAS, C.J., BROWN, Before and CARDINE, MACY, URBIGKIT and JJ. URBIGKIT, Justice.
By appeal this we review Rule W.R.C.P., relating as to of filing the date responsive affidavits to motion resist a for summary judgment custody in a child controversy visitation arising subsequent original divorce decree. The trial court held that affidavits filed day on would not be by though considered the court even earlier Additionally served. is newly involved claimed rights visitation granted by summary judgment upon peti- proceeding tion divorce without evi- dentiary hearing. We reverse. parties litigation, to this David Na- Chabak, tion and Susan Nation were di- 1979, by vorced default status by Nation, waiver of service David then, in contemporary terms, after divorc- ed, parties really fight, started to children, father’s visitation with the two boys aged twelve, and one ten half being primary issue. litigation proceed- course of has through parental
ed terminate rights action, separate by as a filed 4, 1981, on resulting Chabak December denial the trial court by; and affirmance March, 1983, this court Matter Paren- NAN, Wyo., Rights tal SCN P.2d show motion order to cause Nation, 28, 1983, by David filed March post-divorce proceeding. now third activity by peti-, This new was initiated tion filed in the divorce docket March plead- 1985. Petitioners in that named ing Nation, father, are David and Mari- Doyle Nation, paternal lyn Nation and , who, by petition, grandparents, the verified seek to establish rights. No motion intervene in divorce case was made or Moxley, Wheatland, appel- Robert T. was, considered the court. An answer April lant. filed on included a cross peti; tion, sel, response seasonably which a was and included affidavits of the children April filed on 1985.1 relating questions. Re- ceipt unsigned affidavits counsel apparent practice accord with the dispute. Additionally, is not in Susan Cha- County, petitioners Natrona submitted a by separate certified under oath affida- bak request setting for a motion for sum- court, mary copies judgment to the district dated vit she had mailed executed *3 16, 1985, 18, 1985, April April and filed herself, the affidavits of her two children setting then entered on with a notice of Hadrick, notary public, the Lester to April 1985 to schedule the case for that petitioner May counsel for on 1985. A 30, 1985, days hearing May on later. serving traverse to the statement of is not scenario, record, complete pleading subject the in To Susan included the and the interrogatories April If Chabak served 29. directly by appellee.2 addressed brief of answered, pres- ever the answers are not Chabak, officing for in Counsel Susan ently part of the record. (located Wheatland 100 miles from about summary judgment The motion for was held), Casper, hearing where the was by petitioners May then filed on or 28 service, concern about mail carried the days entry setting the after the order. original him affidavits to court with for the signed Affidavits detail were attached as hearing personal presenta- scheduled April days and dated or about 23 judge hearing. the tion to trial at the before the motion and affidavits were actu- refused, offered, The court as then to ally filed. consider the affidavits on the basis that May a Thurs- Since the 16th of was on prior day, had not been filed on the reasonably expected day, it would denied a motion for a continuance to file would receive counsel for Susan Chabak affidavits, proceeded to determine the Monday, May on the motion and affidavits resulting case on the uncontroverted affi- exactly days ten before the earlier petitioners. respon- davits of The tendered hearing appar- was scheduled date. This file-stamped by affidavits were sive Chabak, ently happened. what day, clerk’s office on the next since the May 24 attorney, her filed on a traverse hearing purposes 23, which, court had the file for May with affidavits then dated petitioners’ May unsigned, were mailed to coun- 30.3 “ * * * 1.By pleading designated petition, as a That the Court not find a materi- their does fact, grandparents asked: al and that the Court should law,” (a) judgment conjunction with the enter as matter summer visitation boys father for the entire summer when the and then ordered one month visitation school, were homa; to be exercised in Okla- grandparents, out of in addition each summer for provided to the four-week for the fa- visitation (b) alternate Christmas visitation in one week locality grandparents' ther "in the resi- week Oklahoma in addition to one afford- dence,” which was Oklahoma. father; ed the (c) to furnish street ad- mother mailing suggested 2. It is not of the un- phone dress and number and allow contact signed provides affidavit alone the service re- regular grandchildren. with the on a basis quirement only of Rule It is evidence of support separately The father asked that child However, attempted diligence. by a service during summer. be abated pref- not be client as occurred in this case petition By asked for modifi- cross the mother 5, W.R.C.P., erable is not but excluded cation, existing by suspension, father’s particularly exigent under circumstances. order, on the basis of the father's visitation care. character and Although perhaps not determinative entered, the order as the court denied the procedure normal it would be favored trial an order to show cause father’s motion for pleading in a case where documents would be (which record); appear de- motion does not hearing, clarity and handed to the court at a foi father’s to increase his visita- nied the tion, purposes, office file- record to have the clerk’s claimed; separately denied which was not stamp presentation. in advance of mother; petition of the and stated: the cross custody-visitation4 order then was stage We view those issues raised at this generally change entered to following: be definable as the by granting days amended order sum- (1) Propriety rejection trial court’s mer visitation to Okla- of affidavits that had been served but homa, in July addition the four weeks day prior not filed on the Oklahoma, visitation also in earlier provid- purview 56(c). under the of Rule ed to the father first amendment (2) Propriety the order the decree. trial court denied the summary judgment grandparental cross-petition requested by relief the moth- the context record and er, original prayer and also the behalf evidence, sufficiency and the of the order might the father which have been con- as itself request strued be a for additional visita- statute, 20-2-113, W.S.1977, tion, joint, since it asked all-summer 1985 Cum.Supp. visitation for the father grandparents. *4 (3) Jurisdictional present status of the A casual all examination of affidavits proceeding in of utilization the divorce antipathy, hostility anger, reveals and as action file to issue the visi- well concern as welfare of the tation chil- order.
dren
clearly
sufficient
to
raise issues
requires this
The initial issue
court
responsive
fact.
If the
are
affidavits
con-
prepared
determine
whether
affidavits
sidered,
there
no
is
that sum-
but
position
in support of the
of the mother
mary judgment
should not have been
properly
should have been considered to be
granted.
See the excellent review and
considered,
and,
if
before
trial court
analysis
summary
judgment by Justice
re-
then sufficient to raise issues of fact
in
Brown
Colorado National
Bank
quiring
disposition
trial
rather than
de-
Miles, Wyo.,
(1985).
Schwarzer, Summary Judgment under
dispositive
addressing
Before
the Federal Rules: Defining Genuine Is-
issue,
disturbing question
another
is to
Fact,
sues Material
justification
pre-assigned. hearing
a
filing
date
the motion for summa
Issues Involved
ry judgment
very
pre-ten-day
last
The issues
in
raised
the brief
time
It
notice
is not diseernable.
has been
filing
Chabak include the service
versus
many
procedure
said
under the
times
responsive
56(c),
affidavits under Rule
present
rules
not be trial
am
should
W.R.C.P., and a substantive
as
issue
to the
Coleman,
bush. Whitaker v.
with Procedure, supra, “(d) papers the com- Filing. after —All party a plaint to be served Although summary judgment not a shall filed with the be court either Swarco, Inc., before Keohane v. 320 F.2d time service within a reasonable (6th Cir.1963) 5(d), discussed stat- Rule [emphasis added]. thereafter ed: “(e) Filing with the court defined.—The preliminary “In draft of filing pleadings papers and other with pro- Federal Rules of Civil Procedure required by shall the court as these rules 5(b) in posed part provided: by filing clerk of be made them with the “ prescribed ‘When time is for the court, except judge pleading it paper, service of other him, in permit papers filed shall filed with the court as well as which event he shall note thereon the that time.’ served within date filing and forthwith transmit them proposed rejected. “This rule was office of the clerk.” 5.10, p. Moore’s Federal Practice Par. that, hold We in the absence local 1352.” otherwise, providing rules when written take, *6 position the support of which we compli the affidavits have been served in Divanco, Claybrook Drilling see Co. v. general requirement, ance with the rule Inc., (10th Cir.1964); 336 F.2d Davis presentation concurrent at the the court Company, 302 F.2d Parkhill-Goodloe hearing commencement of the scheduled (5th Cir.1962); 2 Moore’s Federal Practice summary judgment a motion under the 5.10, p.5-38. The oft-cited case of Beau purview of Rule 56 is that the sufficient so Con Concrete Co. Atlantic States text of the affidavits will be considered fort Cir.1965), Co., (5th 352 F.2d struction the trial court order to determine wheth certiorari, showing are specific er there facts that and see on denial of dissent genuine there is issue for trial. S.Ct. U.S. Miller,
Wright Federal and Pro & Practice filing: relates service and not “ * * * cedure: Civil 2738. ‘prior not been served had ” hearing.’ day of 384 U.S. at Wyoming the distinguished No case 1908, Black, required dissenting. The cited filing from service. S.Ct. at of the State Rule All motions not called within 60 pleading.” "Discovery documents shall cept: Motions 302, Uniform denied, may days with 10 Wyoming be submitted on after Rules for the District filing days reads: up or set for will then allowed not be brief automatically if filed ex- desired. hearing Courts "(b) mary judgment file relevant uments relied ry judgment time allowed file relevant At the [******] time of discovery the movant shall portions upon. Rule W.R.C.P.” motion shall filing of the documents within opponents motion for summa- discovery designate designate and of a sum- doc- disposition,
II ry judgment lacks assurance of finding.8 either the facts Entry Propriety Summary Of the Judgment Order Ill appeal, issue of this we
As a second
propriety
entry
consider the
Case Status and Jurisdiction Process
grand-
by summary judgment
order
for the
appeal,
The third issue of this
untested in
parent
period of one month each
jurisdiction,
pleading process
is the
the context of the
summer Oklahoma
whereby
seek to effectu-
record in evidence and
further suffi-
rights
ate claimed visitation
under the new-
ciency
itself in
of the order
statute,
ly
litigated
enacted
as
first
at
now
statute,
20-2-
original
a time after
divorce
W.S.1977,
Cum.Supp.,7
which
terminology
decree. The
of the statute
provides:
question
grand-
call into
whether the
“(c) Subsequent to the death or remar-
parents
any right
have
to become involved
parents or after a
riage of one
or both
until after the initial
con-
divorce has been
separation,
judicial
divorce or
the court
“Subsequent
cluded.
to the death or re-
may, upon petition
grandparent,
of a
* * *
marriage
judi-
or after a divorce or
rights to
grant reasonable visitation
* *
separation,
cial
the court
Sec-
children, if
the court
20-2-113(c).
tion
Since the issue is not
finds,
hearing, that
after a
the visitation
case,
before us in this
we decline to consid-
would be
the best
interest of the
question
time, Chicago
er the
at this
&
child.”
Riverton, Wyo.
Ry.
City
N. W.
Co. v.
disposition
Considering the
of this
(1952),except
247 P.2d
to note
legal
appeal,
unlikely
it is
that the same
Wyoming
statute lacks the detail or
implicit in
concerns will reoccur as are
specificity
many
jurisdic-
afforded
other
say
May
raised.
it suffice to
tions.
“if
requirement
of the statute
the court
case,
finds,
paternal grandparents,
In this
hearing,
after a
that the visitation
intervenors,
uncaptioned
child,”
enunciated the
in the best interest of the
would be
by “pe-
claim under the statute
mandatory,
requires
both a
“visitation”
concurrently
filed
with the father in
finding
and a
interest. The
tition”
written
best
long
original
record in this
as created
summa-
the divorce docket
after the
by finding
guardian
provided
adequately
7. The order
and decision:
will be
considered unless a
appointed
separate repre-
ad litem is
for their
IS, FURTHER,
peti-
"IT
ORDERED that the
Probably
summary judgment
sentation.
before
paternal grandparents
tion filed
should
utilized, guardian-ad-
disposition could ever be
be,
is,
hereby
granted,
grand-
and it
and the
litem assistance would be
parents
hereby
are
awarded visitation with
*7
56,
17(c),
55(b)(2)
and Rule W.R.C.P. The
parties’
period
children for a
of
minor
30
subject
guardian-ad-litem representa-
entire
days,
addition to the
which is in
visitation
custody-visitation
tion of the children in these
Defendant,
may
be exercised
may
appropriate subject
situations well
be an
locality
grandparents’
of the
residence. The
legislative
for
review. See Rule
3-1-
§
grandparents
provide
shall
written notification
108, W.S.1977,
14-3-211,
and §
W.S.1977. In
by May
year
1st
each
Plaintiff
X,
Rights
the Matter
Parental
to Child
date when said visitation shall commence and
(1980).
Petrey,
Petrey
207
volved, it is further determined that
the
at all since the
only
subsection relates
failure of the issue
be raised in either
“reasonable visitation.” See Commission
by present
the trial court or
brief is not
er ex
Shee v.
316
Holewsky,
Pa.Super.
rel.
“
* *
purview
12(h)(3),
waived under the
of Rule
509,
(1983).
Obviously,
ming,
proceedings
cases exist where intervention
in all
suits or
nature,
special statutory
is not the answer since there
be an
of a
in all
civil
proceeding, e.g., single-par-
proceedings
in
except
provided
active divorce
Rule
* *
ent and death
They
eases.
*.
shall be construed to
inexpensive
just, speedy
secure the
post-decree permitted
in
Is intervention
every
determination of
action.”
proceeding?
the divorce
School District No. 9 v. District Bound-
susceptible
dog-
This
is not
to a
ary Board, supra.
answer,
matic
authorities
and the
are not
particularly helpful
differing
because of
permissive
4.Is
the intervention
or of
processes, rules and state
In
statutes.
right?
in
legislation Wyoming,
absence of other
This court will also hold that intervention
normally
indepen-
we would find that
permissive only,
as determined within
utilized,
dent action could
that cases
but
meeting
the discretion of the court when
court,
may occur
in its
where
discre-
permissive
the criteria for
intervention un-
tion,
permit
would
intervention since the
24(c).
result,
By
der Rule
this
it is deter-
orders,
existing custody
order
affect
independent
mined that the
action is nor-
proceedings might
or the
also involve is-
available,
mally
although
limited
its
properly litigated
sues to
between the
scope
proper subject
matter of the
parents
regard
ancillary
separate
or
statute,17
and that intervention in
questions,
including custody
support
or
the divorce docket is available
a dis-
payment.
cretionary decision of the trial court.
examples
Other
of cases where interven-
If
proceeding
utilized is
interven-
proved
tion has
to be effective include
existing
proceeding,
tion
divorce
par-
cases where the father or noncustodial
pro-forma representation
actual and not
actually
sepa-
ent is not
exercise his
able
relating
the children under the statute
rate visitation and it is intended that the
involving
age
decrees
someone under the
pursue
right
would
in a
majority
required.
is also
This is not
as,
representative capacity
example,
ab-
say
every
guardi-
intended to
that in
case a
service,
military
penitentiary
sence in
litem,
required,
an ad
would be
but certain-
Solomon,
confinement.
Solomon v.
children,
ly the direct interest of the
with-
Ill.App.
between the nonintervention status of X, Right Matter Parental to Child permitting Oklahoma and the interven- law rule, tion now in effect in California find, this case we the absence of Oregon by present statute.16 either a motion to intervene in the divorce required 3. Is Rule 24 with Nation, Plaintiff, B. v. David intervention? Nation, Defendant, E. Civil No. yes. The answer is filing independent whereby of an action parties the minors are properly rep- or are handling inter- orderly process resented, jur- that the district court lacked proce- the rules of vention is created isdiction to enter the order from which the dure, justification for omission no appeal was taken. type this of case is demonstrated. summarize, To we hold: 1, W.R.C.P., reads: (1) procedure in all In the govern absence of a local district court “These rules rule, service, Wyo- proper filing respon- record in the State courts of Custody proceedings may specifically do not address and visitation occa- 16. We adoption application or termination sion differentiations in the intervene in either “change . opinion. of circumstance” rule. cases affidavits a summary-judgment pro- sive
ceeding is not at any time McDONALD, Anthony Delbert hearing. the commencement the motion (Defendant), Appellant provisions 20-2-113(c), W.S. *11 Cum.Supp., require Wyoming, The STATE of findings that and written visitation would (Plaintiff). Appellee in the best interest of the be child. No. 85-161. 20-2-113(c), claims Visitation under § W.S.1977, Cum.Supp., may litigat- be Supreme Wyoming. Court of or, independent proceedings; pursu- ed 24(b), provisions ant to the of Rule W.R. March C.P., in the exercise of discretion of the
court, requisite when the facts under the
rule exist.
The decision of the trial court is re-
versed, and the case remanded to vacate the order dated 1985 and June 10, 1985,
entered and for such further June
proceedings as are not inconsistent with
this decision.
Reversed.
MACY, Justice, dissenting. majority state that the trial court grandpar- jurisdiction
lacked to hear the petition,
ents’ because did not move to I independent
intervene or file an action. agree.
do not Wyoming
It is well that the established abridge,
Rules of Civil Procedure do not modify jurisdiction
enlarge or merely govern procedure.
court but W.R.C.P.; ex rel. Frederick v. State
District Court
Judicial District
of Fifth
Horn,
County Big
Wyo., 399
in and
In the case the did
precisely what the statute them jurisdiction. trial court to have
do for the niceties not have been procedural to, certainly but the court
strictly adhered to hear the
had the discretion it in which did absence the manner Exception to do so. must objection
of an relating pleadings error taken to preserved is to consid-
if such error C.J.S., appeal. Appeal and
eration (1957); Snavely Snavely,
Error §
Tex.Civ.App.,