*1 SPITZER, Appellant Harold
(Defendant),
v. SPITZER, Marie Ann (Plaintiff). Appellee 87-123. No. Laird, Dallas J. Neilson and J. Clifford Wyoming. Supreme Court appellant. Casper, for 3, 1989. July Barksdale, Clapp Larry Clapp R.
P.C., Casper, appellee. C.J., BROWN,*
Before THOMAS, CARDINE,** URBIGKIT MACY, JJ.
MACY, Justice. appeal from a divorce decree
This is an as a default and which entered general property and a awarded hearing. Appeal is settlement without pro tunc order also taken from a nunc amending decree. the divorce We reverse. the fol-
Appellant Harold raises lowing issues: Spitzer, who stands 1. Whether Mr. court, standing contempt the district present an the facts of this case under Court; appeal to this district it error for the 2. Whether was in- its divorce decree which court to enter the divorce com- matters outside cluded conducting evidentiary plaint without otherwise, con- hearing, by affidavit or Ann by appellee allegations made sider the complaint; her Marie error for 3. Whether was court to include a $600,000 as making payment of decree obligation of Mr. alimony the and for executor, trustee, or successor zer and his death; and after his district error for the 4. it was Whether by its its divorce court to amend pro tunc order with- nunc March Spitzer. notice to Mr. a motion or ** June 1988. argument; Became Chief Justice retired Justice at time of oral Chief June *2 Compel, Sanctions, appellee Spit- Ann “Motion to Motion for approach The Marie jurisdic- question Attorney’s of this and Motion for Fees.” zer to the Court’s appeal, Spit- Mr. tion to hear this raised 26, 1987, January On the district court issue, different. zer in his first is somewhat Spitzer’s conducted a on all of Ms. being: phrases the She issue Spitzer’s motions and on Mr. motion to appeal be taken 1. Whether 3, 1987, quash. February On without there from default Judgment” court entered an “Order and for relief un- having a motion first been granting all of Ms. motions and 60(b), 55(c) W.R.C.P. der and Rule[s] denying quash. the motion to This order 10, 1986, Spitzer judgment provided pertinent part: in Ms. filed and On November marriage praying that her Spitzer’s] 1. That Motion to [Ms. dissolved, Spitzer Mr. Sanctions, Compel, Motion for and Mo- debts, and equitably divide their assets be, Attorney’s tion for Fees shall and granted support the action she while hereby is, granted. Spitzer] shall [Mr. grant the court pending, was and that such (10) days have ten the date from just relief as it deemed other and further Court’s the within Order and Spitzer requested proper. Ms. also and Judgment produce in which to the doc- temporary restraining and received a order requested Spitzer’s] uments in [Ms. prohibiting Spitzer disposing Mr. Request First Production Doc- for encumbering par- various assets of the uments, which, failing, Spitzer] in [Mr. during pendency ties of the divorce default, shall be deemed in and [Ms. action. Spitzer] granted shall then be her di- vorce, Spitzer] and shall retain Spitzer [Ms. Mr. answered and counterclaimed any prop- and all assets she deems are Spitzer request- for divorce. Whereas Ms. erly Spitzer] Judg- shall hers. [Ms. equitable prop- ed an of the marital division against Spitzer], ment erty, Spitzer requested proper- [Mr. [Mr. Mr. Spitzer] pay shall the sum of zer] [Ms. ty division be determined in relation to the as and for costs associated with $125.00 property party brought and assets each deposition Spitzer], which [Mr. marriage. into the also Spitzer moved 22, 1987, January was scheduled for quash restraining order. attend, Spitzer] did not which speculative, somewhat which, amount for let execution issue. strongly Spitzer record indicates that Mr. appropriated property then all the added.) (Emphasis parties any liquidity had which moved again respond, Spitzer jurisdiction. 17, 1987, February Spitzer on Ms. filed an January Spitzer “Application Judgment.”
On
Ms.
filed a
for Default
The
deposition
notice of
she
which
demanded
district court made its
of default on
Spitzer
produce
February
that Mr.
certain items and
that same
Also on
day.
relating
parties’
documents
to the
mutual
district court entered the divorce decree as
properties.
granted
assets and
also filed a
a default
The
She
decree
compel, seeking
Spitzer
provided
motion to
enforce-
Ms.
a divorce and
deposition.
ment of this notice of
The mo-
division and an
award.
compel
because, prior
requested
Spitzer]
tion to
The decree noted that
was
“[Mr.
time,
Spitzer
willfully, intentionally,
just
to that
Ms.
had served Mr.
and without
Spitzer
Request
Judgment
with a “First
for Produc-
cause violated the Order and
February
tion of
thereby
Documents” to which he had failed filed herein on
respond.
mandating
deposition
scheduled
this Decree of Divorce and
was
January
Spitzer
Judgment
entered
default.” The
appear
deposition
furnish,
Spitzer
at the
nor did he
decree
Ms.
certain
awarded
real
form,
personal
property, apparently
various items and doc-
consist-
Spitzer
requested.
prior
uments Ms.
had
As a
ent
with the
order
result,
Spitzer
Ms.
then filed a combined and
that she would retain such
Tunc,”
original
properly
deemed to be
amended the
decree
property as she
alimony,
by adding
specificity
hers.
to certain of the prop-
With
provided
pay
was to
erty descriptions
by awarding
that Mr.
addition-
$600,000 monthly
installments
al real
to Ms.
which had
$5,000
Spitzer’s obligation to
and that Mr.
original
been included
pay
upon the
of Ms.
terminate
death
appeal
perfected.
would
decree. This
then
was
*3
provided,
Spitzer.
further
how-
The decree
ever,
obligation
“will be
JURISDICTION
Spitzer],
Spit-
obligation
of
[Mr.
[Mr.
Spitzer
jurisdiction
Ms.
that no
contends
trustee,
executor,
or successor after
zer’s]
Spitzer
appeal
lies for this
because Mr.
Spitzer’s] death.”
at the
initially seek relief
district
filed
Spitzer
thereafter
three motions
level from the decree of divorce
judgment. Two of the mo-
to amend the
upon
In sup-
which was entered
default.
certain
the
tions asserted that
port
argument,
Spitzer
of her
Ms.
directs
Spitzer
belong to Mr.
awarded Ms.
Wyoming
this Court
the cases of
Insur-
owned
Spitzer
by
instead were
his son
but
Department
ance
v. Sierra
Insur-
Life
daughter
and should
excluded from
(Wyo.1979),
Company,
ance
(1) application An to the court for an note, however, power do to dismiss which, by order shall be motion unless in such situations has treated been as dis- trial, during hearing made shall Am.Jur.2d, cretionary. 4 Appeal See writing, partic- made shall state with (1962). addition, gener- Error 239 § ularity grounds therefor, and shall al rule has been stated that sought. set or order appeal where an or writ of error is a forth relief right, party aggrieved by matter of (Emphasis added.) Correspondingly, how- ever, Kane, deprived or decree is not Wright, 10 C. A. Miller & M. having privilege by reviewed Federal Practice 2d and Procedure: Civil contempt fact that he is in of court. (1983), 2693 at 483-85 the authors state: § continually struggle The courts C.J.S., with Appeal 4 208 and Error at 611 § the conflict (1957). between the need combat delay disregard the rules and DISPOSITION justice their desire to in the case be- do * * * [Sjeveral fore them. courts have contends the district 55(c) 60(b) concluded that ex- court abused its discretion when it entered Rules press policy liberality awarding mo- toward default divorce relief Spitzer beyond requested tions for relief from default entries and to Ms. in her Further, judgments. they conducting without an evidentia- 59(e) provides: days 2. W.R.C.P. be served not later than 10 after judgment. judgment. Motion to alter or amend a —A motion to alter or amend the shall
591
International,
Playboy
essen- Penthouse
Ltd. v.
determine what were
ry
agree.
Inc.,
(2d
damages.
663 F.2d
unliquidated
Enterprises,
We
371
Cir.
tially
1981).
As stated
Penthouse Interna
recognized that default
long
We have
tional, Ltd.:
not favored
the law.
judgments are
applied
37 sanctions must be
dili-
“Rule
Nord,
(Wyo.
193
Claassen v.
penalize those
gently
‘to
whose con-
both
1988);
Cheyenne National
Westring v.
deemed to warrant such a
duct
(Wyo.1964).
122
It is
Bank, 393 P.2d
sanction,
might
to deter those who
[and]
tried on their mer
cases be
preferable that
tempted
conduct in the ab-
to such
611
Husky
Company,
Oil
its. Mora v.
will
vided
ply with
P.2d at
P.2d
states
Agency,
trolling discovery
propriate sanction for a willful
(Emphasis
uments are
hue,
protective order.3 Id. Under
documents for
es where
serts a
tration of
Caterpillar Tractor
Default,
(b)
pending may make such orders
an order to
to the failure as
parts
others the
thereof,
ings
* * *
A trial court has broad
produce such documents
discovery
(2)
(C)
inherent
recognize
adherence to the
counsel
we conclude the
of de-
opponents,’
case,
to the Court and to their
appropriate
owe
fault was
in this
we can-
Negli
abdicates just party. death of either statutory directive to court’s make parties’ disposition of the equitable Warren, v. 361 Warren P.2d 527 provide for reasonable ali- property and to (Wyo.1961),we stated: assigned to mony properly be one cannot granted Alimony support as and main- parties the have evi- parties. Unless upon tenance terminates the death of agreement regarding alimony denced an parties. true, either of the This is not division, district court property and a however, payments which them- by making perform its function fails to integral part adjustment selves an of the receiving without evi- such a determination property rights. Thus, in this determine case dence. we (Citations omitted.) See also Yates v. its discretion court abused that the district Yates, (Wyo.1985), P.2d decree, entering as a default the divorce McMillan, 1279, 1282 McMillan v. property judgment encompassing a division (Wyo.1985). case, ques In this there is no award, hearing. Al- alimony absent alimony tion that the award was intended Spit- default and Ms. though support as rather than maintenance as stand, we re- grant zer’s of divorce will integral part adjustment prop of the hearing respecting evidentiary verse for an erty rights. Paragraph 7 of the decree alimony. property division award expressly provided: Spitzer] pay Spitzer] shall [Mr. [Ms. remaining issues concern the sum of Six Hundred Thousand Dol- alimony provision and one nunc ($600,000.00) alimony, lars as and for amending pro property divi- tunc orders settlement, property and not as holding sion of the divorce decree. Our provided *. hereinbefore requiring a on the divi- added.) remand, however, (Emphasis Upon problems effectively disposes any sion if the district court makes a similar award adjust- pro the nunc tunc amendments with intending alimony, provision it to award. designed upon should be to terminate similarly amount of the award will party in death of either order to be effec- subject evidentiary hearing, the to an as and to further con- tive intended avoid presents problem nature of that note, operation. test as to its We also likely again presented to the that will ambiguity, another reason to avoid appellate proper district court. It is for an consequences certain tax flow questions that are court to address bound provisions by the construction of such McGuire, again. to arise v. McGuire Internal Revenue Service. (Wyo.1980). P.2d pro- Reversed and remanded for further ceedings opinion. problem alimony provi consistent with this The with paragraph 7 of the sion is reflected CARDINE, C.J., opinion filed an decree, provides part: dissenting. partially concurring and obligation pay the total sum of Six ($600,000.00) CARDINE, Justice, partially Dollars Chief Hundred Thousand concurring dissenting. set under the terms as hereinbefore obligation of forth shall be an opinion I ex- concur of the court trustee, executor, *8 zer], Spitzer’s] cept part holding for that that the district death. Spitzer’s] successor after [Mr. discretion because it en- court abused its tered without a and with- provision is asserts that such a contrary Wyoming to case law. that, regarding
zer as Mr. “adequate contends inasmuch information the na- has not made a full disclosure of the assets of the ture and extent acquired during marriage, alimony including specific parties, information identifying property, inte- such as record should be considered as an ownership property. real Ad- gral part adjustment to titled or award, making ditionally, in regard- have information
the court must ability pay.” to steadfastly re- appellant case and to the give over the wife fused in- consisting of court information district statements; returns; tax financial come stocks, ownership pertaining to records statements; bonds, cash; informa- bank the marital pertaining to tion assets others; possession informa- estate accounts; checking infor- pertaining tion pertaining assets in which mation interest; life insur- the husband claimed an policies; pertaining information ance sharing, and other retire- pension, profit pertaining to plans; information ment husband. owed indebtedness hearing should be I hold that a would might husband at which the wife and held If the husband present evidence. their evidence, he appear offer not to chooses received, by the evidence is bound appropriate enter an court could only upon the evidence available. based holding presently of the court Under the articulated, by refusing to disclose informa-
tion, prevent forever appellant can CO., LTD., Wyoming CLIFF & Ratcliff, Corporation; and Sam (Defendants), Appellants
v. ANDERSON; C. Norman Andrew W. Wyo- Enterprises, Moore; Coulter FDIC, formerly ming Partnership; Company, a Bank & Trust Stockmens Corporation; Banking Wyoming Investments, Wyoming Partner- Dorr (Plaintiffs). ship, Appellees
No. 88-255. Wyoming. Court of Supreme July
