Dejohn v. Dejohn

• Decision Date: 26 October 2005
• Docket Number: No. 05-36.,05-36.
• Citation: 2005 WY 140,121 P.3d 802
• Parties: Cynthia Louise DeJOHN, Appellant (Plaintiff), v. Kenneth David DeJOHN, Appellee (Defendant).
• Court: Wyoming Supreme Court

121 P.3d 802

2005 WY 140

Cynthia Louise DeJOHN, Appellant (Plaintiff), v. Kenneth David DeJOHN, Appellee (Defendant).

No. 05-36.

Supreme Court of Wyoming.

October 26, 2005.

Representing Appellant: C.M. Aron of Aron and Hennig, LLP, Laramie, Wyoming.

Representing Appellee: Daniel E. White and Sasha M. Johnston of Woodard & White, P.C., Cheyenne, Wyoming.

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

HILL, Chief Justice.

[¶ 1] Appellant, Cynthia Louise DeJohn (Wife), contends that the district court abused its discretion in dividing the parties' marital property. Appellee, Kenneth David DeJohn (Husband), asserts that the property division was well within the district court's broad discretion in such a matter.

ISSUES

[¶ 2] Wife poses these issues for our consideration:

1. In a marital dissolution, whether it is an abuse of discretion to treat marital joint property — including the parties' home — as the equivalent of Husband's pre-marital property holdings.

2. In a marital dissolution, whether it is an abuse of discretion to disregard the Wife's share of ownership in the parties' marital home and other assets in joint names.

Husband simply contends that the distribution of property does not constitute an abuse of discretion.

[¶ 3] In her reply brief, Wife asserts that Husband's brief raised these additional issues:

1. Whether Husband was actually employed during the marriage.

2. Whether Husband can assert a prenuptial agreement.

3. Whether Husband can assert an estate plan to avoid gifts of joint property.

4. Whether Wife operated the parties' mobile home park.

5. Whether Husband has falsely attacked Wife's credibility.

FACTS AND PROCEEDINGS

[¶ 4] The parties do not dispute that they were married on July 30, 1993, and that they informally separated in January of 2003. At the time of the divorce proceedings, Wife was 49 years old and Husband was 56. A decree of divorce was entered on November 24, 2004.

[¶ 5] During the course of his working career, Husband earned several million dollars working in the high-tech industry. Wife worked throughout her adult life prior to the marriage, and had both an undergraduate degree in business and a Masters of Business Administration from the University of Colorado, although she had never really been employed outside the marriage so as to make significant use of her college degrees.

[¶ 6] The parties were first acquainted when both worked at Storage Technology, but became friends while Wife worked for the Mountain Man Fruit and Nut Company in the Boulder area, and Husband worked for Exobyte. They dated for a time, and then in late 1991, Wife moved into Husband's home, and they lived together there until that house was sold shortly after their marriage. Neither party held down formal "jobs" during much of the marriage. Husband's work was to invest and reinvest his retirement nest egg, and Wife assisted him to some extent (Husband says she helped very little and was just a "housewife," and Wife asserts that she helped quite a bit). In the year 2000, Wife began working as a real estate agent, and during the four years 2000-2003, her gross income was $225,000.00. During the course of the approximately 10-year marriage, the parties' gross income was over $2,000,000.00, and the parties expended about $900,000.00 of that on living expenses.

[¶ 7] Husband came to the marriage with approximately $1,250,000.00, which he earned working in the high-tech manufacturing field and which he considered his retirement nest egg (this amount included his home which was valued at about $450,000.00). Wife, on the other hand, came to the marriage with very few assets. Husband's position in these proceedings is best summed up by the following testimony given by him at trial:

Q. Now, at the time you left high-tech manufacturing and you had this asset base that you described, what were your plans in terms of going forward with those assets?

A. The plan on going forward was to utilize the assets by investing in property, primarily mountain property, doing some improvements and reselling the mountain property to earn a living off the increased value of that mountain property. And to constantly reinvest the basis so that the amount of money never changed.

Q. And why was it important for you to preserve the basis of the assets you started with when you left high-tech manufacturing?

A. It was my total retirement. It was 26 years of a career. It was the idea that I wanted to have a viable retirement, and I wanted to be relatively well provided for in that retirement through those resources. I had no other retirement program at all.

[¶ 8] Furthermore, Husband emphasized that the parties cohabited for quite a while, but he then reluctantly agreed to marry Wife because she wanted to have a child with him, and he agreed to "accommodate her with that." No children were born of the marriage, however. Husband also contended that the parties entered into an informal premarital understanding with respect to his retirement funds:

Q. Okay, at the time you and Mrs. DeJohn got married, or rather prior to that time, did you have any discussions with her regarding your assets and your plans with regard to those assets that you just described?

A. Absolutely.

Q. What did you tell her regarding the assets that you had in your possession?

A. That I wasn't willing to risk those assets and wasn't willing to start my life over. That at 45 years old and after 26 years of earning those assets independently, I was not going to entertain a relationship whereby those assets would become community property or joint property.

Q. What was her response when you made those comments to her?

A. Completely affirmative. Complete autonomy with regard to the assets. Complete autonomy with regard to the usage of those assets, in that that was my way of earning a living.

Q. Would it be fair to say that she assured you that she would not make any claims against your assets in the event of a divorce?

A. Absolutely assured me of that, no claims at all on the assets, and no attempt to deal with those assets in the course of the marriage, other than to let me do what I was going to do with them and earn a living through them.

[¶ 9] Husband conceded that several of his assets were titled in the parties' joint names at the time of the divorce, but he explained that as follows:

Q. Did there subsequently come a time where you did in fact place certain assets in joint tenancy with Mrs. DeJohn?

A. Beginning after the sale of the — well, there was discussion early in the marriage about the fact that if I died Cindy would inherit nothing, so what I did is I put some assets in joint tenancy, that would be the ones she would inherit if I died. And that was probably around 20 percent¹ of the total assets. It was a few assets and they tended to be long-term more life-style oriented than business oriented assets.

The bottom line was that Husband wanted to keep all assets that could be traced to his retirement funds, without regard for how those assets were titled at the time of the divorce. Specifically, Wife asked that the following jointly held assets be divided equitably in accordance with Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2005):(1) The marital home at 58 Overlook Road; (2) Notes receivable on the Vedauwoo Springs lots that were titled in their joint names; (3) Rockaway Ranch Lots purchased with a line of credit for which Wife was also liable; and (4) $155,000.00 in their joint bank account.

[¶ 10] The district court issued the following decision letter:

The Plaintiff, Cynthia DeJohn and the Defendant, Kenneth DeJohn, were married to each other on July 30, 1993, in Boulder, Colorado. No children have been born as a result of the marriage. The parties have been separated since January of 2003. The Defendant worked in the high-tech industry until 1995. At the time of the marriage, the Defendant had approximately $1.25 million dollars in assets. Since 1995, the Defendant has been involved in the acquisition and resale of real property.

The Plaintiff, at the time of the marriage, had virtually no assets. Since the year 2000, the Plaintiff has been employed as a real estate agent in Laramie, Wyoming, and has made as much as $70,000 in the year 2003.

During their marriage, the parties lived in Boulder, Colorado, and then moved to Kemmerer, Wyoming, in 1997. The parties, thereafter, moved to Cheyenne, Wyoming, in 1998, and ultimately to what is known as the Overlook Road home in the Vedauwoo area between Laramie and Cheyenne.

The Plaintiff currently lives in a home that she is purchasing in Laramie. The Defendant resides at the Overlook Road residence.

During the course of the marriage, the Defendant bought and sold various pieces of property, the profits of which the parties used for their living and enjoyment.

It is clear that during their married life together, the Plaintiff and Defendant enjoyed a prosperous lifestyle.

The parties have mutually agreed and divided a great deal of personal property. The order, entered herein, should reflect that those items of personal and real property that have been mutually divided to the parties in satisfaction, should be set over to them as their sole and separate property.

At issue, however, is in excess of $1,000,000 in assets that include the marital home and adjoining lots, cash, and various mortgage notes.

The Plaintiff contends that these assets should generally be split equally since they were acquired during the marriage. The Defendant, however, believes that he should receive virtually all of the assets since they can be traced back to the 1.25 million dollars that he brought into the marriage.

Discussion

The Court generally agrees with the Defendant's analysis. The Defendant brought in excess of $1,000,000 into the marriage, while the Plaintiff brought virtually nothing. The Plaintiff and the Defendant have not been married a long time. The...