Engebretsen v. Engebretsen
| Citation | 522 P.3d 156 |
| Decision Date | 29 December 2022 |
| Docket Number | S-22-0100 |
| Parties | Merritt ENGEBRETSEN, Appellant (Defendant), v. Lisa ENGEBRETSEN, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
Representing Appellant: Stacy M. Kirven of Kirven Law, LLC, Sheridan, WY.
Representing Appellee: Mark E. Drury of Law Office of Mark E. Drury, Casper, WY.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, FENN, JJ., and CAMPBELL, DJ.
[¶1] Merritt Engebretsen (Husband) and Lisa Engebretsen (Wife) divorced after almost 17 years of marriage. Husband contends the district court abused its discretion when it denied his motions to continue the bench trial. He also appeals the district court's division of marital property, claiming it was error to award him real property that belonged to his parents and to order him to make an equalization payment to Wife. We affirm.
[¶2] Husband presents two issues, which we rephrase as follows:
[¶3] The parties were married on July 8, 2005. Wife filed her complaint for divorce in January 2020, but the parties did not separate until March 2020. The district court scheduled the bench trial for February 18, 2022. On December 30, 2021, Husband's counsel filed a motion to withdraw and a motion to continue the bench trial. Husband's counsel indicated he was retiring from the practice of law effective December 31, 2021, and he would no longer be able to practice law. Husband's counsel represented he and Husband made diligent efforts to obtain substitute counsel, but these attempts were unsuccessful, so Husband needed more time to obtain substitute counsel. Wife opposed the continuance. She asserted Husband had not made any attempts to settle the case in the past two years, he did not meaningfully participate in mediation, he should have known about his attorney's retirement sooner, and she would be unduly and unreasonably burdened by any further delay.
[¶4] The district court held a hearing on the motion to continue on February 2, 2022. Although the record is unclear, it appears Husband represented himself at that hearing. The district court orally denied the motion to continue, and it instructed Wife's counsel to prepare a written order denying the motion. This order, which was not entered until after the bench trial, did not contain any rationale for the district court's decision to deny the motion.
[¶5] After the district court orally denied Husband's motion to continue, he retained new counsel who entered an appearance on his behalf on February 9, 2022. Husband's new attorney filed another motion to continue that same day. This motion indicated the need for a continuance was out of Husband's control because his former counsel's retirement was sudden and unexpected. The motion also indicated former counsel had not filed requests for discovery, pretrial disclosures, or expert witness designations. New counsel requested a continuance to allow review of discovery, designation of experts, and preparation and filing of necessary pleadings and disclosures. The motion also indicated Wife's counsel objected to the continuance. The district court denied this motion without a hearing. The order did not include any reason for denying the motion.
[¶6] The day before the trial was set to begin, Husband filed his pretrial disclosures under Rule 26(a)(3) of the Wyoming Rules of Civil Procedure. This pleading informed the district court that Husband's former counsel had not actually retired, but instead had been suspended from the practice of law effective January 5, 2022. When new counsel took over, she discovered there was an outstanding discovery issue, which she took steps to correct. However, pretrial disclosures could not be completed until she met with Husband to review the hundreds of pages of documents Wife produced in discovery. New counsel asked the district court to allow Husband to call witnesses and present exhibits that had not previously been disclosed.
[¶7] At the beginning of the trial, Wife's counsel objected to Husband calling any witnesses or presenting any exhibits that had not been timely disclosed. Husband's new counsel argued Husband was not to blame for his former counsel's conduct, and he would be prejudiced if he was not allowed to present evidence. Rather than completely prohibiting Husband from calling witnesses or presenting exhibits, the district court stated it would rule on each objection as it was made.
[¶8] The following evidence was presented at the trial. Shortly after the parties married, Wife went to work for the Casper Star Tribune as an advertising sales representative. Husband was working for James Cable. Wife left the Casper Star Tribune in 2010 and went to real estate school. Wife began working for Realty Executives in 2010. Husband left James Cable in 2012 and went to work for Century Link, where he worked for two years before going to work for Union Wireless.
[¶9] Wife was unexpectedly terminated from Realty Executives in January 2016. The parties decided to start a real estate business together. Both parties incurred debt to start the business. In addition, Wife used the money she had set aside for her 2015 taxes to pay the parties’ living expenses and business expenses while the company was starting up. As a result, the IRS placed a tax lien for approximately $34,000 on the parties’ home in 2017. The parties borrowed $50,000 from Husband's 401k to pay off that debt. The loan from Husband's 401k had not been fully repaid as of the date of separation. Wife believed there was approximately $30,000 remaining on this loan at that time.
[¶10] Wife testified that she and Husband worked around the clock for the first two weeks to get the real estate business up and running. Husband built the website and took care of online advertising while she dealt with "the nuts and bolts of setting up the business." After those two weeks, Wife continued working 12–15 hours a day selling houses to pay Husband back for the debt he had incurred. Although the company paid for Husband to get a real estate license, he never sold a home or commercial property.
[¶11] The office manager for the parties’ real estate company testified Wife worked as a real estate agent and property manager in addition to her duties as the owner of the company. The office manager also testified Husband would come into the office three-tofive days a week, and he would occasionally answer phones, help take rental payments, and show rental properties if no one else was available. Husband continued to work fulltime for Union Wireless. Husband stopped coming into the real estate company's office approximately three months before Wife filed for divorce.
[¶12] Wife's business valuation expert opined the parties’ real estate company had a value of $48,000 as of the date of separation. Husband did not agree with this valuation, but he did not offer an alternative valuation. From 2018–2020 the real estate company paid Husband approximately $120,000. Wife testified this money was to pay him back for the debts he incurred when starting the business and to compensate him for the work he did for the company. Husband claimed he did not know this $120,000 was paid to him, and he thought this money was the profits Wife "was able to get out of the business." During this same period, the company paid Wife close to $600,000.
[¶13] After the parties separated, Husband moved into a home on Williams Street in Evansville, Wyoming. Husband used the parties’ real estate business to assist him with preparing the paperwork to purchase this property. Husband made the initial bid on the property in January or February of 2020. Wife presented some evidence that this property was originally going to be titled in Husband's name, but it was subsequently titled in his parents’ names. The Williams Street property was purchased for $75,500 in cash, and there is no mortgage against that property. Husband testified his parents purchased this property as an investment, and they are allowing him to live in it while he fixes it up.
[¶14] Wife remained in the marital home after the separation. Wife's real estate valuation expert opined the marital home was worth between $300,000 and $310,000 as of the date of the separation. The mortgage on the marital home had a balance of approximately $245,000 at that time.
[¶15] At the time of the marriage, Husband's 401k had a balance of approximately $36,000. At the time of separation, Husband's 401k had a balance of approximately $142,000. Husband also had an employee stock ownership plan with his current employer, which he believed to be worth around $12,000.
[¶16] The district court issued written findings of fact, conclusions of law, and a decree of divorce. The district court awarded the marital home to Wife, subject to the mortgage thereon. The district court awarded Husband "all right, title and interest, be it actual, contingent or anticipatory," in the Williams Street property. Wife received all "right, title and interest" in the parties’ real estate company and all the associated business debts. Husband received his entire 401k. Wife was awarded a truck, subject to the indebtedness thereon, and Husband was awarded two vehicles, a camper, two motorcycles, and two ATVs, all of which were fully paid off. The district court also divided the marital debts between the parties. In addition to the mortgage and business debts, Wife was assigned $79,926 in additional debts. Husband was assigned debts totaling $54,277. Finally, the district court ordered Husband to pay Wife an equalization payment in the amount of $20,000. This appeal timely followed.
[¶17] Husband argues the district court abused its discretion and violated his...
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