*1 PAUL, Appellant D. Norina below),
(Plaintiff
v. PAUL, Appellee R.
Theodore
(Defendant below). PAUL, Appellant
Theodore R.
(Defendant below), PAUL, (Plaintiff Appellee
Norina D.
below).
Nos. 5185.
Supreme Wyoming. Court of
July 1980.
5. The judgment the wife be re- sponsible for a credit-card debt was improper procedural grounds. cross-appeal, Mr. Paul raises three issues: $10,000.00
1. The award of to the wife *3 for attorneys’ improper fees is be- cause fees the were not proved; 2. The jurisdiction trial lacked award some furnishings household which corporation; were owned and 3. The trial court arbitrarily acted deeming that the the cor- poration, of which he was a major shareholder, right had waived furnishings. aforementioned We will affirm. FACTORS CONSIDERED BY Cohen, Jackson, Kenneth S. Norina D. THE COURT
Paul. The record shows that the court took the R. I. Leedy, Hettinger Leedy, following & River- factors into consideration in set- ton, for R. Theodore Paul. tling the property issue in this case: Age parties; of the the number and age RAPER, J., Before C. and McCLIN- the parties by prior children both TOCK, THOMAS, ROONEY, ROSE and JJ. marriages the child and born as issue of this marriage; responsibility each of ROSE, Justice. children; parties to all and welfare These of all of age two them. The cases involve a former wife’s and station in life appeal of each property party from a was The court settlement in a di- considered. note probability vorce and took of the marriage the former cross-ap- husband’s each of peal. parties. The court considered length marriage separa- and presents Mrs. Paul five in her ap- issues tion, noting parties separated had been peal: years for three proceedings and divorce had 1. The judge trial estimating erred in pending some years. five The trial the net worth of the marital estate the marriage observed that had been earning the husband’s capacity, stormy from the beginning. He considered prejudiced this factual error the assets and liabilities into brought division; marriage by parties both and the assets and 2. The trial court abused its discretion party they liabilities of each leave the division; determining marriage ability husband’s —the 3. The prejudiced by wife was the fail- ability earn —the wife’s earn —the finan- ure of court to enforce her requirements cial of both —and discovery rights; social status each. The court also con- 4. The husband was at fault and the parties— sidered the health each of the
wife prejudiced by the refusal of pending other divorce actions and the attor- the trial court to ney-fee allow evidence of obligation parties. Generally fault; the husband’s speaking, the court took careful and con- Allegation Error of Trial Court’s Factual sidered note of all of the elements re- in matters of this nature. quired by law alleges that the trial court The wife estimating the husband’s net worth
erred in earning capacity and that this and annual THE FACTS division. prejudiced error was 28 and the husband The wife assets owned wife lists a number of marriage they when married —the second value husband, respective together with They for him. for her and the third According to Mrs. Paul’s each item. divorced, when but respectively 44 and 61 than arithmetic, Paul is worth more Mr. $1,400,000.00 separated years for three they $2,000,000.00 had been instead of $1,040,000.00 fact, peti- by the court or a divorce found prior to divorce—in However, apply by the husband. claimed in the East for some five tion had been filed resolving con ing appellate our rules for pending years before the divorce and was evidence, we not find the flicts in the do when the court heard this case. *4 error wife’s claim of factual trial, After the court found the husband There is sufficient evi court meritorious. $1,400,000.00 have a net worth of and an to support to the trial court’s dence of record $75,000.00 earning capacity per year. of regard. conclusion in this letter indicates that judge’s The decision $24,000.00 year a the husband also receives DIVISION PROPERTY income-producing proper- from some of his furnishings and For wife—Household took ty. settling property, court personal property: items of probable age into account the retirement contemplates that the judgment The being respect 65 with the defendant as separate her sole and wife is to have as expected earning capacity, his future property, Pittsburgh items their resi from needs, age, proba- and the well as the wife’s dence, are fine most of which household bility remarry. will that she silver, jewelry, furnishings, china and other letter, judge’s According to the decision objects, articles of value. The list of these $21,400.00 the mar- brought the wife into legal-size three single-spaced, consumes husband, riage, at the time of while The court did not set pages paper. $2,600,000.00, furnish marriage, was which value these various household worth personalty, but we ings and other items figure family home included husband’s judicial of the fact observe and take notice marriage. which he contributed to good quality that the listed are of articles show, therefore, figures These high value. years marriage the fifteen or sixteen from divorce, husband the net worth of the Jewelry: $1,200,000.00. depleted by some that Mrs. There is evidence in the case settling In addition to dis- jewelry eighty has a value of Paul’s Indian issues, pute judgment divorce ninety thousand dollars. She retains provided custody parties’ only for a five-carat property, and she also retains support child in the wife and for child engagement ring. a month until the child reaches ma- $300.00 Cars, : horses and snowmobiles jority emancipated. or becomes otherwise truck, expensive retains a an Mrs. Paul pay husband is also ordered to for automobile, and some three snowmobiles college expenses college at a of the child’s monetary value set for horses. There is no capable of corpus choice. The of a trust these items. $20,000.00 the wife producing per year to For husband: years for 34.2 was also set over to the child the, home, Mrs. val- obligation (a) Family family when its home: The $415,000.00, $280,000.00 Paul ued at between discharged. had been $680,000.00 proximately from The trial trust fund was set over to the husband. payments $200,000.00 (assuming figure fig- two averaged these apparently and, making for taxes after allowance ures trust) sufficient to fund the and is some- due, home at valued the and assessments what more than one-half the amount that $336,000.00. Mrs. Paul testified would be sufficient for her needs. as- principal (b) and bonds: Stocks stocks in over to
sets set (2) was further pay Mr. Paul ordered to assets, by and corporations. These various $2,000.00 the sum plaintiff per up the between large, make difference $24,000.00. year, month for or one figure value and the net-worth family-home indicated, e., $1,400,000.00. i. previously (3) was ordered The defendant
$10,000.00 plaintiff’s at- Wyoming torney’s fees. AND OBLIGATIONS ORDERED DEBTS
BY THE COURT (4) Mr. Paul was ordered to pay $300.00 per support month estab- obligations the minor debts A. Wife’s child majority the decree: until emancipation. lished As- suming she goes college at age (when Mrs. discharge Paul was ordered to $5,000.00 approximately per year becomes obligation credit-card sum obligation husband), the husband $2,300.00,which was incurred by reason of $3,600.00 must pay per year years, for three *5 stealing her using and cred- defendant’s $10,800.00. or it card. She was also pay left to some of attorneys’ her fees incurred in and this oth- (5) pay for The was ordered to husband er suits filed in divorce other states. How education; college even daughter’s much of Mrs. Paul’s attorneys’ fees in other of no evidence as to cost though there is plaintiff states the or defendant will have defendant, we assume obligation by shown The the record. $20,000.00. it to of be a minimum not, course, court could have ascertained of the hus- obligation this. The total financial is: wife and child band to the obliga- B. Husband’s debts and financial $680,000.00 period to the wife over a 1. by tions established the decree: years; of 34.2 $24,000.00 period 2. to the wife over a (1)The defendant ordered husband was way year; which one a trust fund in a to finance $20,000.00per return to Mrs. Paul
would $10,000.00 3. for the wife’s Wyoming at- commencing year judg- year, one from the torney’s fees. life, continuing years for 34.2 ment and time, period whichever was the shorter $10,800.00 support 4. for child before corpus go to the child with the college; and obligations to Mrs.
parties when fund’s college education $20,000.00 for 5. discharged. re- Paul had This award parties, child of the $1,666.66 month per to Mrs. Paul turns $744,800.00($750,000.00, imposes making a total throughout expectancy. her life It ap- obligation rounded).1 the husband total Redundant, real, 1. but still is the defendant’s might say day The dreamers that in this and obligation to furnish the trust with a sum of age rates, high only interest this will take mony things: $200,000.00. which will do two Most of the members of this $20,000.00 court $400,000.00 (a) plaintiff year. when remember it would Furnish the have taken might again!! it—and (b) years intact at and Be the end of 34.2 at that available the child of the time. analysis An statute and like this: score looks
The final box Wyoming interpreting cases it or simi $750,000.00 pay . . obligated The statutes, predecessor following lar finds $714,000.00 . . payments . wife receives The principles relevant to the case at Bar: $230,800.002 . . payments child receives The jewelry val- (in receives The wife great 1. The trial court has discretion in 80,000.00 .$ ue) just equi- and dividing property. “[A] (in household un- likely table division is as as not to be receives wife truck, automobiles furnishings, Piper, Wyo., equal.” Piper v. undetermined an horses and (1971). are and fast There “no hard amount).$_ Young governing property rules” divisions. husband.$750,000.00 paid (1970). Young, Wyo., Total 472 P.2d wife.$795,000.00 received Total won’t be 2. The trial court’s discretion of household (plus value except grounds, g., e. disturbed on clear truck, automobiles, horses items, Piper, supra, at 1063. property). personal Wyoming Supreme cannot 3. Court child.$230,800.003 Total received in- constitute itself as a court of the first in divorce cases.
stance divide Merritt, Wyo., Merritt v. 586 P.2d QUESTIONS LEGAL RESOLVED (1978). just division I.Was “Generally speaking, 4. a settlement equitable’? [property judged needs to be settlement] evaluating the wife’s claim that necessarily an overall basis and not on the just equitable was not property division parts.” Piper, supra, at separate basis of the trial court’s discre- and was an abuse of 1065. tion, statutory we must look to both our length marriage 5. The is a considera- law. and case tion. Id. 20-2-114, W.S.1977, provides: Section 6. Judicial discretion should not be exer- divorce, the granting “In court shall party punish cised as to reward one so disposition make such Storm, Wyo., the other. Storm v. 470 P.2d *6 appears just equitable, parties and (1970); Beckle, Wyo., 371 and Beckle v. having respective merits regard for (1969). the court But parties of the the condition in which and parties’ should consider the merits. Id. they divorce, party will left be ownership property resulting 7. Joint property acquired, was through whom the is a from a demonstrated intent to share imposed upon prop- and the burdens imposed upon property “burden for erty party either for the benefit of and owners; the statute directs benefit” both may children. The court decree to the consideration of this burden as one factor. alimony wife reasonable out of estate Id. having regard ability of the for his other through 8. The court should consider- may and order so much of his real estate party property acquired. which Id. profits or the rents and thereof as is assigned set out ei- necessary be 9. The court should consider the condi- life, party may spe- ther for decree a will after tion in which the be left paid by cific sum be him.” the division. Id. a so ly be established trust caused the figure
2.
optimistic
This
is based
as-
money
be invested
could
minimum sum
sumption that
the trust can be funded from
a
wife and
purposes
for the
$200,000.00. See,
serve two
supra.
fn.
—income
purpose of
when the
the child
sum certain
behalf,
had,
served.
in the wife’s
the trust
and child is
the wife
3. The amount received
greater
the court
than the amount
ordered
husband to
judge
because the district
wise-
property
prefera-
10. An award of
is a
Inasmuch as a trial court’s judgment
ble,
alimony. Young
modern substitute for
cannot be disturbed except on clear
grounds,
Young,
we
supra,
v.
have seldom
786-787.
interfered with
the action of the trial courts and whenev-
11. A property
may
division
reach the
er we have done so we have interfered
separate property of
spouse.
g.,
either
E.
only to very
limited extent.
It is readi-
Craver, Wyo.,
Craver v.
(1979).
715 trial, 20-2-114, husband at wife’s counsel supra, settlements because still § comply established the husband’s failure to regard directs the court to have “for the tecum, the subpoena respective with duces but not parties.” did merits of the We are prejudice flowing not persuaded. show from the failure to The judge great trial has complete discovery. dividing discretion in and he is not to use the property punish division to W.R.C.P., 37, provides Rule that parties. Storm, supra. one of the When judge may the trial impose sanctions adequate there comfortably are assets to failure to with comply a discovery order. provide parties, for both of the the trial This means that the trial court has discre not does abuse its when discretion impose tion to impose or not one of permit parties refuses to to air their See, listed sanctions. Hockey National laundry dirty in court. League Inc., v. Metropolitan Hockey Club, 639, 427 U.S. 96 747 S.Ct. 49 L.Ed.2d The credit-card debt. denied, (1976), rehearing 429 U.S. argues The wife that the divorce court (1976), S.Ct. L.Ed.2d 158 dis for a may adjust rights against her those of a cussion of the trial court’s discretion under creditor action. How- divorce See, also, Rule F.R.C.P. v. Marshall ever, inapplica- we this argument consider Co., Cir., Ford Motor 446 F.2d ble to the of this case since there is no facts (1971). v. Sunny Day Satterfield Re argument that the debt is not credit-card sources, Inc., Wyo., 581 P.2d valid. A division of the estate of marital (1978), denied, rehearing suggestive also necessity assignment involves an of assets review, of this Upon appellate conclusion. and liabilities. the function reviewing court is not to put itself in place of the trial court and We see no whether need to discuss sanction, to determine hindsight what assignment liability or not this any, if would have been most appropriate; wife of to the was fair. A instead reviewing court’s task is simply one judged must on an division deciding prejudice whether or not had Piper, supra. overall It unreason basis. suffered reason the trial al judge’s suggest able that our determination leged abuse Hockey of discretion. National judge whether the trial abused discre League, See, also, supra. Local No. Union property and dividing tion in all of the Inc., Gravel, Town Line Sand & turn on the liabilities of Pauls could Cir., (1975). 511 F.2d 1198 In the case at $2,300.00 assignment of a credit-card debt. Bar, counsel; dealt judge with the to the wife. attorneys’ fees Award of was position in a to assess the husband’s discovery; claim of abusive and he was the award of protests The husband position to better estimate whether the hus $10,000.00 attorneys’ to the wife fees on band’s improper prejudicing conduct was grounds proof that there is no that the wife’s trial. efforts at We con cannot reflects fees were reasonable. The record clude, law, as a matter of for divorce were filed Ar lawsuits
judge abused by failing his discretion Wyo well as Pennsylvania, kansas impose sanctions. prop ming. fight over the division erty complicated. note that We Testimony on fault. that he the court had husband informed transcript $87,000.00 attorneys’ shows that the trial fees as a incurred told the that he wife testified would result of the divorce. The consider fault in a division involving Wyoming attorneys’ that she had incurred much property. $14,000.00. The wife Mrs. Paul’s concedes fees of more than Wyoming is now a no-fault jurisdic divorce counsel court that the Wyoming told the argues tion but the legislature attorneys’ intend wife’s total fees $75,000.00. letter, ed retain the issue fault in order of In his decision *9 ings, the well as that the judge Pennsylvania decreeing that as husband trial states
the court attorneys’ any might fees were ridiculous. The had have abandoned claim he to describing not the that it was emphasized the furnishings from Dubois residence. The Wyoming attorneys’ fees ridiculous. The that appeals husband and claims the computed Wyoming wife’s attor- judge the trial judge arbitrarily. acted The trial $13,000.00. ney’s to Given the com- fees be making judge discretion in a great has undisputed the and the fact plexity of case not find to property division we do attorneys’ fees in- very large in making have abused this distribu- we by parties, both think the trial curred tion. adequate for ground court had more than trial court is af- judgment The $10,000.00 justifying plain- an to award firmed. attorney attorney fees. tiff’s McCLINTOCK,Justice, dissenting. the Corporate ownership furnishings. this I do not believe that Because objects prop that the law, that the say can as a matter of trial erty an award to the wife division included judge by failing abuse his did not discretion allegedly by a of some furniture owned sanctions, impose and because I do not the corporation which husband was justified judge that the trial was believe chairman of board and of which he the up a trust be set requiring that fund percent or more the stock. owned awarding Mrs. her a lump- Paul in lieu among The furniture was removed representing property sum payment set- corporation lodge proper the wife from the tlement, I must dissent. was near after she forced from ty Dubois by virtue of writ of occupancy thereof Discovery Pretrial
possession in another civil action. issued requested The trial court husband to upon To predicate appellate review specify claimed. The court task theory reviewing that “the court’s opinion in its letter: stated simply deciding prej- one of whether or not heard “The Court has never from udice had been suffered reason he respect husband with discretion,” alleged trial judge’s abuse from alleged wife took the Dubois purpose ignore property. discovery. the rules of threshold “In view of husband’s with inaction question judge must be whether the trial respect matters the takes these Court failing impose abused his discretion in position the wife may have question If this is answered af- sanctions. A items listed on Exhibit and the hus- this make firmatively then court must claim, his he any band has abandoned if as to this abuse determination whether had, any property ever that the wife took prejudicial. discretion was n In determining from the which she Dubois did entitled.” bar, in the case at abuse discretion in the record which nothing We find majority following made has find- finding. We dispute further note ings: legal argument that the husband’s on this “. the trial judge dealt point quotation Wy- consisted of a from the counsel; was in a to assess position oming perfunctory Constitution. ar- Such discovery; husband’s claim of abusive gument could considered insufficient to position was in a and he to better esti- Jones, g., merit our attention. E. Elder v. improper mate whether husband’s (1980). Wyo., 608 P.2d prejudicing conduct was the wife’s ef-
Arbitrary
action
court.
trial.”
717
court,
reviewed the acts of the trial
when in
value of their
defenses,
claims and
thus
actuality
merely
this court is
rubber-stamp-
encouraging
trial;
settlement before
ing
judge’s
the trial
decision without mak-
(5) to
surprise
minimize
at
trial. Grey-
ing
independent
an
determination as to
hound, supra,
Cal.Rptr.
15
at
364 P.2d at
whether or not
there has been a proper
275; Hickman, supra,
329 U.S. at
exercise of
opinion
discretion. The
handed
S.Ct. at 385.
today
down
supports
neither
purposes
In order to accomplish these results the
for which the rules of discovery were enact-
discovery
rules of
must
liberally
be
con
ed, nor
give
does it
any direction to trial
way
strued in such a
as to favor disclosure
judges who will in the
questions
future face
by
of facts
both sides. While I do not
involving the imposition of sanctions for
question the majority’s conclusion that
failure
comply
to
with the rules of dis-
trial court has discretion in granting or
covery.
denying discovery requests
imposing
and in
Pretrial discovery provided
by
Rules
sanctions
comply
for failure to
with dis
26 to W.R.C.P. is one of the most useful
covery requests,
argument
cannot be
a litigant
tools
has. As Mr. Justice Jackson
purpose
used to defeat
for which the
aptly
has
stated in a concurring opinion in
discovery
Greyhound,
rules were enacted.
Hickman
Taylor,
495, 515,
329 U.S.
355, 15
“
supra,
101, 364
Cal.Rptr.
Cal.2d
at
385, 395,
S.Ct.
(1946),
The Wyoming rules of discovery are mod- authority and bar in the inter- prime eled after the federal rules of discovery and pretation principles the act and the both adopted in order to accomplish policies discovery matters. following (1) results: to expedite both preparation considering the trial function we for the court’s trial and the trial itself by a simplifying part: apparent, noted in relevant ‘It is and narrowing of the is- sues; (2) provide however, litigants that each exercise of discretion a means to facts, ascertain the truth and to aid in will occur under a different set of preventing perjury; (3) to must, aid ascertaining necessity, the meri- and that each case defenses; torious claims (4) light particular to inform decided in those facts. in advance of the trial of possible lay But down certain orally the nature and ries general rules based and would time make which discovery acts can purpose requested available in the the documents *11 determining proper interrogatories. the exer- attorney be used in Mrs. Paul’s reluc- discovery in tantly agreed cise all cases. of discretion to attend session but stat- proper of To a exercise discre- attorney constitute in a Mr. Paul’s that ed letter to tion, factual determination of the tri- course, feel I still Mr. Paul should “[o]f clearly unequivocally al court should and interrogatories have in answered legal following con- based writing point past these during at some cepts: legislative purposes 1. The [to [¶] writ- two If he had answered in months. give greater in assistance to him, ing with in I his records front of checking truth ascertaining the and and believe answers would have been his provide an preventing perjury; effective complete I ex- more accurate and than detecting false, means exposing of and pect any his will oral answers be. defenses; sham and fraudulent and claims event, though signing your I am not even simple, make in a convenient available stipulation, I will attend the session inexpensive way, and facts which other- proved except wise not be with could 21, attorney 1979Mr. February On Paul’s great expedite difficulty; litigation; sim- Docu- Availability mailed a Notice issues; plify expedite narrow the and and and Produce ments Intent to Sworn State- and preparation facilitate both and trial] Interrogatories to Mrs. ments Answer to guise are not to be subverted under the attorney. Paul’s The notice indicated discretion; of the exercise of 2. [¶] orally Mr. Paul to answer appear would given Those are purposes to be effect interrogatories would at and thwarted, rather than to the end that ’ containing time make documents available ; encouraged discovery is . . . (Pp. plaintiff’s inter- requested information 382-383, p. 103, Cal.Rptr. 364 P.2d p. at Mr. rogatories. The session was held 279, added.)” Superior italics Britt v. Mrs. attorney’s Paul’s office and when Diego Court of County, San Cal.3d question- Paul’s counsel arrived for the oral Cal.Rptr. [574 781] attorney he was Mr. ing informed Paul’s J., (1978) (Bird, Newman, C. Mosk and reporter have a arranged had not to court JJ., concurring opinion), quoting from Af- present to Mr. Paul’s answers. record Greyhound, supra. attorney con- ter some Mr. Paul’s discussion In the case at bar the record indicates reporter questioning tacted a and the that the give failed to considera- was transcribed. At conclusion tion to these factors when he denied Mrs. attorney Mr. Mrs. session Paul’s informed Paul’s motion for sanctions. Mr. Paul de- Paul’s Mr. would attorney that Paul liberately intentionally disregarded his either or to supply transcript a to the court attempts discovery. wife’s to obtain In De- Paul. to Mrs. Mrs. Paul forced cember of 1978 Mrs. Paul served her hus- though transcript proceedings even interrogatories band requesting in- written discovery under the rules concerning formation his financial status. have interrogatories answers to should After comply Mr. Paul failed to with the supplied expense. her at no to discovery request Mrs. Paul filed motion appear orally Mr. Paul answer compel did interrogatories. answers more than interrogatories, but he did little The trial court ordered that the husband fail only make an Not did he appearance. answer interrogatories by February documents, bring requested or financial judgment would be rendered for response many questions Mrs. but his complying Paul. Instead of with the ar- propounded attorney court’s wife’s attorney order Mr. Paul’s contacted incomplete. Mrs. a number attorney February gumentative Paul’s On had question that Mr. of occasions that the indicated Paul would make he stated himself interrogato- previously Arkansas available to answer the been answered in Pennsylvania. Apparently ability, Paul failed Mr. was reduced in worth almost a proceed- produce any transcript of those years million and a half dollars in the 16 ings. While the record is not clear on this marriage. In view generally gather I point, that Mrs. Paul had access to rising time, period values I transcript deposition Arkansas skeptical am of this conclusion would approximately that was taken week be- subject scrutiny. closest Because the oral questioning Wyoming. fore It is district court’s failure to enforce interesting that Mr. to note Paul instituted discovery only spec- that court and this can the Arkansas divorce after the proceeding ulate as to Paul’s actual worth. That the case at bar set It had been for trial. also majority only speculating highlighted are *12 appears that Paul Mrs. had access to a by figures exercise in set forth in the deposition in Pittsburgh, Pennsylva- taken $20,000 opinion. By multiplying per nia, 31, 1978, August but that she was year by that Paul is Mrs. to receive to a transcript unable obtain of the Penn- may she years during number of which sylvania support hearing was held in that it, $680,000. of they receive arrive at a total September of 1979. While I aware of am Considering payments other fact body that Mrs. Paul had to a access receive, payments which she will and other previous testimony, of some of which un- make, majority required that Paul is to doubtedly concerned Mr. Paul’s financial interesting at arrive this tabulation: situation, much of the that information she $750,000 paid by Total needed to determine Mr. net Paul’s worth $795,000 by Total received wife supplied. has never been In Mrs. Paul’s figures, first these considered At blush motion for sanctions she had set forth in worth against court-accepted net of questions detail the that Mr. Paul has never $1,400,000,give impression Paul of that (See Appendix.) answered. The informa- the district has with generous court been tion was crucial Mrs. Paul’s case. The stringent Mrs. Paul and with her husband. record that very indicates Mr. Paul is a only majority conclude that do “[n]ot successful businessman with a multitude of we find that the abused his dis- financial holdings both in country this cretion, fair, find the but we distribution Mexico. Because of the mere number of just judiciously contrived.” holdings, financial Mrs. Paul be ex- cannot however, 714. actuality, In Paul has pected to present be able to a correct finan- $205,000 annuity, paid out for the picture only cial holdings her husband’s with- fund, up amount to set the trust adequate discovery. necessary out $475,000 majority or some less than the refusing addition to comply with would I think is the first indicate. this request interrogatories, for answers to I husband is instance have seen where the Mr. Paul also failed to comply with a sub- money that his given credit for all the poena duces personally tecum served produce period will a present payment over him several days before subpoe- trial. The years. na duces requested tecum he bring that with him to trial certain documents con- litigation appears pro- to have cerning his various financial activities. states, tracted, involving several Wheth- depositions number taken. The foregoing flagrant illustrates the the fault lengthy er this battle was due to discovery abuse process Mr. Paul plaintiff not seem or defendant does and his attorney. This conduct frustrated thing me that important; only to be Mrs. attempts Paul’s at pretrial discovery, must is Mrs. Paul we determine whether forcing her go substantially to trial un- Wyo- had a in has fair trial the courts prepared present her impor- case. The principle ming. say I tance of would emphasized discovery this case is deeply engrained jurisprudence in our accept majority they when as fact man, approach the wife is entitled to bar of considered the district judge to exceptional justice equally be a man of financial as informed of her husband’s manipulated system dicial is not reasonably possible. affairs as
financial actively one who proceedings by divorce effect to give can take note of and court No misleads the court and aggressively bearing upon the merits of factors all of the because the opposing party, simply disposition. Forcing one of opposing was in small measure position igno- party from a to deal discovering the fraud legal delinquent contemptuous of with one as rance entry of a final decree.” prior to hardly makes for process as was Mr. Paul discovery is the justice. Adequate equal forth, I set I am Although, as shall later goal. only means to general arrangement not satisfied with disposed court has by which the district with additional a new trial A remand for real concern parties, my discovery was entered in for additional time justice by our deci- appellate an is that Rolling Stamping & Biehler v. White Metal today cripple what to me was one sion we Corporation, Ill.App.3d 333 N.E.2d important and con- the most valuable (1975). products liability This was a rules, adopted by cepts of the new federal involving a claimed to be defec- case ladder inadequate discovery Through inus 1957. found that de- appellate tive. The with a has not been furnished the court discovery comply failure to fendant's I can proper base for its determination. *13 being prevented plaintiff from able orders my position no better than did summarize or knew should to show that defendants Boyce, in court when said the Utah the condition. have known of defective P.2d at 931: much believe that the situation is I also case, though plaintiff had present “In the Utah, Boyce, 609 P.2d Boyce like that in judgment a hearing, she was denied a (1980). Judgment entered had been and full based on accurate information making that Mrs. disposition a her to the merits of disclosure relative 60(b), under Rule Boyce, moving relief position.” 60(b), (essentially the same as Rule U.R.C.P. reason, I would have re- If for no other prop- on a W.R.C.P.), was not based claimed new trial with the cause for a manded assets. The showing er of her husband’s discovery for additional additional time Boyce, that Mrs. before district court found as legal of such sanctions imposition with decree, entry had reason believe end. proper to that are not correct and denied that valuations were reversed, saying supreme relief. The court Fund Property Settlement —Trust (609 930-931): at P.2d majority’s conclu- disagree I also with the “. . non- . record of [Defendant's made the dis- the distribution sion that compliance discovery procedure “fair, just judiciously was trict court designed prevent other tactics full dis- judge trial believe that contrived” and true, closure, a perversion if is up a trust will, when set abused discretion over- judicial process and not be awarding her a Paul in lieu of fund for Mrs. that solely ground looked on the representing prop- lump-sum payment guilty degree of some plaintiff perhaps though majority erty Even division. being diligent in as she fault propri- question of failed to address the court, might in the have been. A trial fund, I this to be of the trust believe ety equitable a fair highly making matter of question. controlling of a division of context dispute things, highly contends, acrimonious among often other Mrs. Paul bitter, requiring must take care that evasive judge in not the trial erred just way Appellant stratagems immediately pay not stand in the “to Mr. Paul what her interest money equivalent resolution. The determination sum of $175,- residence, proceed- subject Pittsburgh between assets are to the divorce in the $200,000.” Pittsburgh resi- gamesmanship ing may 000 and not be based facts; parties and ju- jointly owned dence is calculated to obfuscate the trial, Mr. $415,000 Paul has not contested this estimate. before appraised at $336,000. Assuming its value at that the trust fund can be funded judge fixed $205,000, judge with Mrs. Paul. has essence agree I divested Mrs. Paul of her interest in the the di- granting order judge’s The trial family replacing home it with a trust pertinent part: provides vorce upon terminates her death. equitable as an division “6. That reviewing this court’s decisions con- the Defendant shall parties’ property, settlements, cerning property alimony a trust fund with form and maintain awards, support, I have and child failed to banking institution which shall reputable any authority upholding disposi- find such a $20,000 in interest pay to the Plaintiff numerous, tion. While the cases are not annually, payable year, on June 1 of each question have other courts considered is to years. for 34.2 Said trust fund power whether a trial has begin payment to Plaintiff on June require up that a trust fund be set in a years, of the 34.2 1980. At the conclusion Plaintiff, proceedings. divorce Of the courts that whichever or the death of question, have discussed this some have first, principal of said trust occurs upheld, held that such an order cannot be fund shall be transferred and set over special while others have concluded that in child, Paul. parties’ Samantha circumstances, equitable powers either the equitable as an division of “7. That expressed implied or the parties’ property, Defendant shall disposition. statutory language allow such a $2,000 per month to Plaintiff the sum Annot., 1170, 2(a), p. 3 A.L.R.3d § re- year. payments for one to be Said (1965). by Plaintiff no later than the 1st ceived payment with the first day of each month Harden, In Harden v. 182 Okl. 1,1979, payment June and the last due on court, (1938), finding *14 1,May due on 1980. judge power have the to the trial did not be, here- plaintiff That and she is alimony payments “8. create a trust fund for by, convey by to to Defendant ordered stated: deed, quit claim all of good and sufficient the “Finally, plaintiff contends that interest in the real right, her title and create a attempting trial court erred in to Road, property located at 116 Woodland that the alimony awarded so trust of Pennsylvania, and to execute Pittsburgh, paid plain- to income therefrom would be necessary any and all other instruments to the trust estate to descend her tiff and conveyance such so that Defend- to effect We find no author- heirs her death. real simple ant will own fee title to said alimony ity disposition of the for such
property.” plaintiff The is by award the trial court. and, alimony, as we have entitled to this char- trial and this court have The found, is reasonable. the sum awarded property acterized this trust fund as a set- hold, however, that We must actually a set- property tlement. If this is create a attempting to court erred disposition just not tlement such a alimony special of the awarded.” trust 20-2-114, equitable required by as W.S. § My understanding property 1977. of a set- hand, Farley Farley, the other On property parties of the tlement is that the Cal.Rptr. cert. Cal.App.2d equitable in an manner with to be divided 438, 13 L.Ed.2d denied U.S. S.Ct. party being portion each awarded a of that a (1964),involving an action to establish Each is then free to make property. party judg divorce decree as a California Utah they their shares as de- disposition such separate a that ment was consolidated sire. who was plaintiff’s ex-husband by action seeking have the title of the California to Mrs. Paul contends that the trust fund in trust $205,000. placed that had been Whether or land can be funded for know; however, court correct, quieted, the California I not court not this is do Utah achieved, purposes we hold award authority creation statutory for the found that. .” placed be in trust . . pro- should Utah divorce decree trust. convey at 170. was to to his N.W.2d husband that the vided California certain as trustee wife important It is note that in this case the used for be solely owned excep- that appellate only found court of the minor education support and the creation circumstances warranted tional the children reached And when children. fund, is termi- when the trust of a trust but trust majority, corpus of the age of corpus. the wife is entitled nated equally among the chil- divided be W.S.1977, 20-2-114, supra, em- Section dren. powers the court to gave the di- Utah statute pertinent disposition “. of the . make such power to “make such orders vorce court the just parties appears as children, property and relation to the re- having regard for the equitable, parties of the parties, and the maintenance and the spective merits Farley, children, may equitable.” they left condition in which will be Cal.Rptr. at 361. The California supra, 38 divorce, through party whom light decree was valid in held that the acquired property was burdens that the trust the extent statute imposed property for the upon the benefit up to meet the financial needs fund was set party of either and children.” However, the court children. minor specifically pro- While the statute does went on hold power to vide that the trial court has the cases convince “. . The cited Utah established, trust fund be order is valid the extent us that the decree al- language probably of this statute broad purposes the above serves disposition. Assuming lows for such goes minority. The decree the children’s statutory language allows the trial farther, effectively divests It however. a trust fund be created court to order that in the Farley Mr. of all interest land settlement, ques- to secure it, vesting remaining purpose its power should have been tion whether this they proceeds, in the children when reach still remains in the case bar exercised attempt- The Utah court has adulthood. The cases that have allowed unanswered. disposition hus- ed an inter vivos have in most disposition such a done so his adult band’s estate for benefit of only particular if the circumstances of cases *15 brought No Utah case has been children. of a warrant the establishment the case to our attention which lends direct or Annot., in 3 pointed trust fund. As out support disposition to such a inferential 1170, 7, (1965), p. 1180 is A.L.R.3d § “[i]t divorce; nor, view, upon may in our the apparent, paucity from the of cases of the language broad Utah statute be presented, that the which the issue has been ” Farley, an stretched to such extreme.” . lightly to . is one not resorted measure supra, Cal.Rptr. 38 at 362. Winter, Iowa, Marriage In In re 223 been no In the case at bar there has (1974), appellate N.W.2d 165 the court di- require special circumstances showing alimony placed rected that an award begin To that such a trust be established. exceptional view of the cir- trust fund in with, up was not set to insure the trust case, presented including cumstances of Mr. and Mrs. support and education personal and economic the wife’s uncertain daughter. The record indicates Paul’s situation. The court stated: child pay is to month for Mr. Paul $300 “* * * girl’s exceptional support circum- and he is to also for In case, showing is college in view of There no of this Joan’s education.
stances to meet these likely situa- to fail personal uncertain economic and Mr. Paul is tion, Furthermore, no there is purposes obligations. and in of the consideration incapable of han- showing to see those that Mrs. Paul alimony and our desire
723
my opinion,
legislature
included
Even if
affairs.
dling her own financial
language
in the statute not for the
pow-
so,
question the
I would still
this were
purpose
giving
power
to dole out
in a divorce action
er of a court
parent
give
to direct a
to
a child a share of
proper-
representing
monthly payments
estate,
or her
but rather to insure that
does
party
that one
to insure
ty settlement
support and education of minor and incom-
her un-
money awarded to
spend the
petent
provided
children will be
for after
role of a
simply not the
wisely. This is
aptly
As
stated
the Colora-
divorce.
divorce court.
Menor,
Supreme
do
Court in Menor v.
fund, I
object to the trust
only
(cid:127)Not
do I
473,
(1964):
Colo.
391 P.2d
corpus
the transfer of
object
also
“* * * The trial court was without
is terminated.
when the trust
daughter
authority
give
to direct that James must
Feldmann,
in Feldmann
As
said
to each of his children a share in a future
(1949), “the
Kan.
204 P.2d
may may
acquire.
estate which he
a divorce a
granting
is that in
general rule
pro-
is to
obligation
defendant
the statute to
authority under
court has no
support for his
vide reasonable
children
part
property
that a
decree
need,
range
their
within the
according to
property of his
shall be the sole
ability. A father of children is
of his
Likewise,
v. Gi
in Giambrocco
children.”
any property
settle
obligation
under no
ambrocco,
161 Colo.
children,
them an
or to deed
upon his
requiring the
(1967),
trial court’s order
any
contrary
asset. On the
interest in
in residen
convey her half-interest
wife to
voluntary
or other
may by will or deed
trust
the benefit
property
tial
to a
for
if he sees fit to do so
a child
act disinherit
invalid
the children was found to be
holding,
In so
Supreme Court.
Colorado
writing for the
Accordingly, had I been
stated:
the court
have held that
trust
majority, I would
“Accordingly, we hold that
First, there
respects.
fund is invalid in two
cre-
with reference to the
court’s order
exceptional circumstanc-
showing
was no
trust,
plaintiff to
requiring
ation of
trust fund
the creation of the
warranting
es
in the residential
convey her half-interest
settlement
payment
for the
belonging
to both the
for
and, also,
not have the
the trial court did
children,
beyond
of their
the benefit
corpus
that the
authority
require
court, and
jurisdiction
of the trial
daughter
given
trust fund be
clearly
copy of the Arkansas depositions and herein) reviewed both the answers are tiff has but ant has filed ‘E’, (See question to this Exhibit can find the answer therein. not not contained 21, 13). line 17, page through line therein. page 8 requests income 1 Interrogatory “b. “g. requested, among Interrogatory 5 through 1978. De- 1963 tax returns for things, original purchase price other produce documents said fendant failed any of Defend- and value automobiles Reve- the Internal and had not contacted person or whom it ant and the firm from cop- attempt an to obtain nue in Service purchased. stated that was Defendant 21, ‘E’, 14 page line (See Exhibit ies. of his original value Lincoln Conti- 21, 22). page line through 31, August his was to in nental testified requested “c. Interrogatory Further- Pennsylvania deposition. any mort- of or consideration amount more, stated that he could Defendant he had a gage. Defendant testified price or the firm from purchase recall the in Browns- on a condominium mortgage purchased whom the Lincoln. Defend- he ville, Texas, give the refused to but con- provide ant documentation failed the mort- or consideration for amount of (See points. Exhibit cerning any of these that the infor- gage. Defendant stated 49, 12). through page ‘E’ lines 81, August his mation was contained requested “h. also in- Interrogatory 5 1978, Pittsburgh. deposition taken concerning Defendant’s air- formation the an- does not contain deposition That craft, purchase, value at date of including 32, page line 13 (See Exhibit ‘E’ swer. from, original purchase purchased firm 32, 24). Page line through payments price, and total amount Interrogatory requested “d. origi- stated that the made. Defendant amount, original rate of interest and un- price an- purchase nal value and mortgages all of Defend- paid balance of Pennsylvania deposition his swered to answer these ant. Defendant refused 31, deposition does August 1978. Said mortgage questions pertaining Defendant not contain that information. Brownsville, property. De- on the Texas of the firm from give failed to the name that he had documenta- fendant stated aircraft, even purchased whom he had answers, these but supply tion that would though on the is- he had documentation (See it with him. Exhib- bring he did not testify sue. Defendant also refused 35, 34, page ‘E’ page through it line 13 payments made. amount of total 23). line through line 16 (See page ‘E’ Exhibit requested “e. Interrogatory 3 infor- 4). line page concerning money owed to De- mation requests informa- Interrogatory “i. stated that Plain- fendant. Defendant concerning tion Defendant’s furniture money for tiff’s him educational son owed totally goods. Defendant household to an- expenses. The Defendant failed Interrogatory. De- failed to answer this owed, stating swer the amount to his that he had been fendant stated bring the doc- documented but did not Interrogatories were home since the him and had looked umentation to even refused served but failed and prior coming answers. at it oral a list of furni- Plaintiff with provide the (See page through ‘E’ line 16 Exhibit give refused to ture. Defendant also 14). page line (See Exhibit even an estimated value. requested “f. infor- Interrogatory through page line line 11 page ‘E’ concerning money any owed to mation 24). entity in which Defendant has an inter- informa- requests “j. Interrogatory est. that this informa- Defendant stated *17 en- business Defendant’s concerning 31, tion 1978, August Pennsyl- tion was in his including marriage, his terprises during vania deposition dep- and in his Arkansas years during the profits gross the annual 19,1979. (See February osition of Exhib- stated Defendant through 1978. 46, 1963 45, through page it ‘E’ line page 25 in his given had been answers that all 17). produce line Defendant failed to
725 Defendant, but he acquire refused to (See produce the same. ‘E’ page Exhibit 31, Pennsylvania deposition, August 1978 72, 73, through 24). line line page 20 19, deposi- February his 1979 Arkansas tion, hearings Pennsylvania. in Court Interrogatory “n. 17 asked whether 58, (See page through ‘E’ line Exhibit 25 any person, firm or other entity any held 62, 18). page September ‘sup- line property in trust for the benefit of De- port’ hearing Pennsylvania in has never requested fendant. The information in- (as above) described been transcribed trustees, cluded the name and address of and, therefore, Plaintiff does have complete description property, A Penn- that information. review of the present property. value of the De- sylvania depositions and Arkansas reveals fendant stated that this information had the Defendant has never testified given Pennsylvania in his and Ar- concerning gross profits the annual of his depositions Pennsylvania kansas and in enterprises. business proceedings. (See Court ‘E’page Exhibit Interrogatory requests
“k. 9 informa- 74, 75, 4). through page line 7 line A concerning tion stocks Defendant testimony review all transcribed re- purchased during marriage. has his De- veals that Defendant has never testified that he previously fendant stated had concerning the names and addresses of interrogatory testimony answered this trustees, description, present value of Pittsburgh, Pennsylvania and El Dora- property held in trust for Defendant in do, 65, (See Arkansas. page Exhibit ‘E’ Mexico. 66, 13). through page line 23 line Of “o. Interrogatory 23 requests infor- course, the September, ‘support’ 1978 concerning mation property, money or as- hearing was never and will never be tran- sets which Defendant sepa- claims are his scribed. A review of August Defendant’s rate property subject and not to division. 31, Pennsylvania deposition and his Defendant stated that he previously testi- 19, February deposition 1979 Arkansas fied concerning (See this issue. Exhibit reveals Defendant has not testified 78, ‘E’ page line 24 through 79, page line concerning this information in either of 9). Upon review previous of all testimo- depositions. those ny Defendant, Plaintiff can not find Interrogatory requests “1. informa- any answer to Interrogatory. this concerning any tion interest of Defend- Interrogatory 24 refers to the sale “p. any parcel ant in property, of real includ- De- ‘separate property’ by Defendant. ing present value of the real estate. previously stated that he had fendant Defendant answered that all the informa- Interrogatory. all of said testified to given prior depositions tion had been (See page through ‘E’ line Exhibit proceedings. (See and Court Exhibit ‘E’ 18). A review of all of page line page through page 24). line 14 line previous transcribed testimo- Defendant’s Remembering September, Defendant has never tes- ny reveals that ‘support’ hearing is not will not be tified as to this issue. transcribed, a previous review of all oral testimony discloses that Defendant has “q. Interrogatory requests infor- concerning never present testified concerning any written or record- mation parties’ property value of the located at Defendant. ed statements obtained Road, Pittsburgh, Pennsyl- may 116 Woodland there Defendant stated that Dubois, statements, previ- vania or the located in than what he has other Wyoming. ously produced, gone but had not com- pletely through papers his and could Interrogatory requests “m. infor- (See page ‘E’ produce the same. Exhibit mation concerning sales of real 14). through page line line 19 including legal made Defendant description. Defendant stated that he Interrogatory requests “r. informa- previously had concerning testified debts, concerning any outstanding tion information, except legal descrip- for the obligation liabilities or other contracted tion. Documentation was available to marriage (which Defendant *18 previous inter- discussed in not been
had he testified
rogatories). Defendant others, he but could sure there them because he had give a list of papers appearing through his before
gone (See Exhibit ‘E’ answers. at the oral 7). through line page line 16
page requests informa- Interrogatory
“s. by De- concerning funds received
tion parties’ separation.
fendant testified that could not
Defendant Furthermore, he had docu-
give list. answer, which to but he
mentation from prior appearing at it
had not looked produce answers and did not
the oral the time of the an-
documentation ‘E’ (See page
swers. Exhibit line 8 13).”
through page line Champlin L. BEARD
David Appellants Company, Petroleum (Defendants),
v. BROWN, Administrator A.
Donald Napier, Wallace Glenn Estate (Plaintiff). Appellee Deceased, INC., corporation, FRAILEY,
R. L. (Defendant), Appellant
v. BROWN, Administrator A.
Donald Napier, Glenn of Wallace Estate (Plaintiff). Appellee Deceased, Champlin L. BEARD
David Appellants Company, Petroleum
(Defendants), BULLER, Appellee R.
Patricia
(Defendant). and 5183.
Nos. Wyoming.
Supreme Court 15, 1980.
Aug.