Breitenstine v. Breitenstine

• Decision Date: 19 April 2006
• Docket Number: No. 05-186.,05-186.
• Citation: 132 P.3d 189,2006 WY 48
• Parties: Jerald R. BREITENSTINE, Appellant (Defendant), v. Nancy L. BREITENSTINE, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

132 P.3d 189

2006 WY 48

Jerald R. BREITENSTINE, Appellant (Defendant), v. Nancy L. BREITENSTINE, Appellee (Plaintiff).

No. 05-186.

Supreme Court of Wyoming.

April 19, 2006.

Representing Appellant: David G. Lewis of Jackson, Wyoming.

Representing Appellee: W. Keith Goody of Alpine, Wyoming.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] In 2001, the district court decided several issues in the divorce action between Jerald Breitenstine (Husband) and Nancy Breitenstine (Wife), and ultimately entered a judgment. In 2005, the district court awarded Wife $196,930.17 pursuant to Wyo. Stat. Ann. § 20-2-111 (LexisNexis 2005) for the attorney's fees and costs Wife incurred while attempting to enforce the judgment against Husband. Husband now appeals the district court's decision, claiming that the statute did not authorize the district court to award Wife such fees and costs and that most of the fees and costs were unreasonable. We affirm.

ISSUES

[¶ 2] 1. Whether the district court had the authority, pursuant to Wyo. Stat. Ann. § 20-2-111, to award Wife attorney's fees and costs in the instant case?

2. Whether Husband has established that the district court abused its discretion in finding that such fees and costs were reasonable?

FACTS

[¶ 3] The parties were divorced in February 1999. The district court entered findings of fact, conclusions of law, and a judgment (collectively "the judgment") concerning custody of the parties' two children, child support, alimony, and the equitable division of the marital estate in August 2001. More particularly, the district court: 1) granted Wife custody of both children; 2) ordered Husband to pay back child support ($39,021.25 plus interest) and future child support ($3,000 per month); 3) ordered Husband to provide (or reimburse Wife for) the children's medical insurance and to pay all uncovered medical costs; 4) awarded Wife back alimony ($204,000 plus interest) and future alimony ($2,000 per month); and 5) determined that the marital estate was "at least" $8,764,673¹ — the district court awarded Wife one-half of that estate ($4,382,233) and then reduced that amount by the value of Wife's residence ($2,000,000), leaving a balance of $2,382,233 (plus interest). Each party was to pay his or her respective attorney's fees and costs, except that the district court ordered Husband to reimburse Wife for half of a court-appointed expert's fees.

[¶ 4] In its findings, the district court emphasized Husband's fraudulent conduct leading up to the divorce proceedings and clearly anticipated that Wife would experience difficulty in collecting the amounts Husband owed pursuant to the judgment. The district court concluded that Husband had "taken substantial steps to secrete ... assets² beyond the jurisdiction of [the district court] and the courts of the United States of America," including transferring "substantial" assets to asset protection trusts and other entities in the Bahamas. The "sole purpose" of these asset transfers was to defraud Husband's "creditors and potential creditors, including [Wife]" and Husband retained dominion and control over the assets he transferred. The district court ordered Husband to repatriate assets, to return the money he fraudulently took from his children's trusts (plus interest), and to assign property within his control to Wife to the "extent necessary to satisfy the judgment." Wife was also awarded some stock to assist her in collecting "the amounts due"; if the stock ever produced "something of value," Husband could petition the court for a credit.

[¶ 5] Husband appealed the district court's marital property division. We concluded that the district court did not abuse its discretion in dividing such property, but modified the district court's judgment in one respect. See Breitenstine v. Breitenstine, 2003 WY 16, ¶¶ 1, 26-27, 62 P.3d 587, 589, 594-95 (Wyo.2003). We also determined that the district court's findings on the fraudulent nature of Husband's conduct leading up to the divorce proceedings were supported by the record, and noted that ordering Husband to assign assets to Wife "was to aid in collection, which is entirely appropriate given Husband's lack of compliance up until that point." Id., ¶¶ 5, 11, 15, 18-25, 62 P.3d at 589-94.

[¶ 6] Husband's lack of compliance continued long after the district court entered the judgment in this case. In December 2001, it appears that the district court held Husband in civil contempt for failing to comply with the judgment and sanctioned Husband $73,000 (plus interest). In February 2003, Wife sought to present the district court an accounting of "money that [she had] collected against the judgment" and to have the district court determine the balance Husband owed her pursuant to the judgment. The district court held a hearing and concluded that Husband had not paid certain amounts for child support, alimony, the children's health insurance and uncovered medical costs, the money necessary to reimburse the children's trusts, the expert's fees, and the aforementioned contempt sanction. The district court also found that Husband's failure to comply with its orders "forced [Wife] to retain legal counsel in both this country and in the [Bahamas] and [she] has incurred in excess of $241,000 in attorney's fees in an attempt to recover the amounts due." Wife recovered $803,756.55 and a $550,000 Florida condominium "through these efforts," for which Husband received credit against the judgment. The district court ultimately ordered Husband to pay Wife $2,419,658.97 and awarded her $241,000 in attorney's fees. It does not appear that Husband appealed the district court's order.

[¶ 7] In October 2003, Wife filed a motion seeking attorney's fees for her efforts in "Florida and the Bahamas and elsewhere in an attempt to enforce the judgment and other" court orders, and additional reimbursement for the children's medical insurance and uncovered medical costs. After a hearing, the district court credited Husband for a November 2003 child support payment of $136,055.16,³ but concluded that Husband had not otherwise paid certain amounts for alimony, the children's health insurance and uncovered medical expenses, the money necessary to reimburse the children's trusts, the expert's fees, and the aforementioned contempt sanction. The district court also found that Wife had incurred in excess of $433,017.96 in attorney's fees to recover the amounts due from Husband because of his "failure to abide by" its orders, ordered Husband to pay Wife $2,488,365.62, and awarded her $433,017.96 in attorney's fees.⁴ It does not appear that Husband appealed the district court's order.

[¶ 8] In March 2005, Husband filed a motion requesting that Wife account for "all money, shares of stock, real estate, or other property, and proceeds, she has obtained, by enforcement or other collection efforts" pursuant to the district court's original judgment. Wife submitted an accounting. She also asked the district court to award her $196,930.17 for attorney's fees and costs she had "incurred since November 2003 because of [Husband's failure] to comply with the judgment" and filed the affidavit of an attorney who stated that such fees and costs were reasonable. Husband opposed Wife's request because the district court did not award Wife any attorney's fees in the original judgment and the district court did not have the authority to award Wife attorney's fees or costs for her subsequent efforts to enforce the judgment.

[¶ 9] The district court held a hearing on the matter in May 2005. At the hearing, Wife testified extensively about her difficulty enforcing the district court's judgment against Husband; Husband was still not paying willingly, which forced Wife to attempt to "garnish" Husband's known assets. Wife's efforts, and the bulk of the attorney's fees and costs generated therefrom, were concentrated in the Bahamas.⁵ Wife testified that it was necessary to retain attorneys in both Florida and the Bahamas because "there are two different jurisdictions involved so it requires attorneys in both of those places."⁶ The proceedings in the Bahamas included Husband's appeal of an asset freeze order, which appeal was ultimately dismissed, and "several hearings" involving "all sorts of procedural and philosophical issues" in an attempt to persuade a Bahamas court to recognize the Wyoming district court's judgment. Wife testified that she recently obtained a partial summary judgment against Husband "personally," "so that whatever he holds personally in the Bahamas he is required to pay and they won't let the money just stay there in the Bahamas without it being distributed." She must now try to pierce Husband's "irrevocable trust" (presumably an asset protection trust) and his other business entities in the Bahamas, and she "could be years" from actually collecting the amounts Husband owes her in the instant case.

[¶ 10] It appears that the balance of Wife's attorney's fees and costs stem from: 1) a lawsuit Wife filed in Florida relating to the $550,000 condominium previously referred to herein; 2) a garnishment involving a Virginia law firm; 3) two garnishments in Ohio, as well as consultations with attorneys there regarding the death of Husband's mother — according to Wife, Husband should inherit "several million dollars" and Wife began to explore how she might access that money in order to satisfy the judgment; 4) a garnishment in Iowa — a bank account has been frozen but the bank has not distributed any proceeds to Wife; and 5) various related representation provided by Wife's Wyoming attorney.

[¶ 11] The district court ordered Husband to pay Wife $2,511,236.36 in principal and interest after crediting Husband for the $1,603,302.98 in total assets Wife had collected to date ($113,491.27 of which Wife had collected via two garnishments since the district court's previous order). The district court also...