Kane v. Kane
| Decision Date | 26 September 1985 |
| Docket Number | 84-50,Nos. 84-49,s. 84-49 |
| Citation | 706 P.2d 676 |
| Parties | Donna J. KANE, Appellant (Defendant), v. Kenneth A. KANE, Appellee (Plaintiff). Donna J. KANE, Appellant (Plaintiff), v. Kenneth A. KANE, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Thomas C. Wilson, Sheridan, and Charles F. Moses, Billings, for appellant.
Tom C. Toner, Redle, Yonkee & Arney, Sheridan, and Frank C. Richter, Billings, for appellee.
Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.
In this appeal we are asked to decide whether the district court had the authority to modify the provisions of a decree of divorce relating to the property of the parties and to determine the consequences of the court's division of that property pursuant to Rule 60(a), W.R.C.P. In the process we must address the substantive effect of our statute relating to equitable distribution of the property of the parties, § 20-2-114, W.S.1977. The district court adjusted the decree by ascribing to the parties co-ownership of a ranch in Montana during their marriage, at the time the divorce complaint was filed, and prior to the decree. It also required the wife to pay her share of federal taxes arising out of the sale of the ranch property. We hold that the district court had jurisdiction and authority to so modify the decree; that as modified it correctly reflects Wyoming law; and the judgment of the district court is affirmed.
In the index to her brief in these cases Donna J. Kane raises the following issues:
Kenneth A. Kane complains that there is not really a statement of issues by the appellant, and he then states the issues in this way:
This case has been before this court on two previous occasions. Kane v. Kane, Wyo., 577 P.2d 172 (1978); Kane v. Kane, Wyo., 616 P.2d 780 (1980). It appears that the reason for this appeal is the assertion of inconsistent positions by the Internal Revenue Service of the Department of Treasury of the United States of America with respect to payment of taxes arising out of the sale of the ranch property in Montana to Shell Oil Company. If the effect of the divorce decree was that at that time a sale occurred from Kenneth A. Kane to Donna J. Kane of an undivided one-half interest in the ranch property in exchange for a release of her marital rights then the transaction would result in all of the taxes being paid by Kenneth Kane. On the other hand, if the decree of divorce effected a division of property between co-owners then upon the sale each of the parties would pay one-half of the taxes.
When this issue arose Kenneth A. Kane filed a motion in the divorce case seeking modification of the decree pursuant to Rule 60(a), W.R.C.P. 1 Apparently out of an abundance of caution he also filed a separate declaratory judgment action in which he sought a construction of the decree which would ascribe to it the effect of a division of property between co-owners. The district court combined the two cases for hearing and entered an Order and Judgment which provided in material part as follows "IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, that Kenneth A. Kane and Donna J. Kane were during their marriage at the time the divorce complaint was filed, and prior to the decree of divorce, co-owners of the Montana ranch property purchased by Shell Oil Company regardless of in whose name the ranch was titled.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED, by the court that Donna J. Kane is to pay her respective share of the federal income taxes arising out of the sale of the ranch property to Shell Oil Company as though she was a co-owner of the ranch property during the marriage to Kenneth A. Kane."
We do not address the applicability of the Wyoming Declaratory Judgments Act, § 1-37-101 et seq., W.S.1977, to the situation. Donna Kane argues that it is not applicable, and Kenneth Kane does not seek to defend that position. It is not necessary to treat with the Declaratory Judgment Act because the district court had jurisdiction pursuant to Rule 60(a), W.R.C.P. to treat with the matter as it did. We think that proposition was settled in Kane v. Kane, supra, 616 P.2d at 782.
The district court retained jurisdiction to correct errors in the decree, and it is well established that we can uphold a trial court if there is any proper basis on which that can be done. Mentock v. Mentock, Wyo., 638 P.2d 156 (1981); ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981). A correction to make a written judgment conform to an oral pronouncement properly may be accomplished under Rule 60(a), W.R.C.P. Kane v. Kane, supra, 616 P.2d at 782; Estate of Kimball, Wyo., 583 P.2d 1274 (1978). The first sentence of Rule 60(a), W.R.C.P., is identical to Rule 37 W.R.Cr.P., and we have held with respect to the criminal rule the judgment is distinguishable from a record of the judgment and if the record or written judgment is incorrect, the trial judge has a duty to correct it. Lane v. State, Wyo., 663 P.2d 175 (1983), citing Fullmer v. Meacham, Wyo., 387 P.2d 1007 (1964). The length of time between the correction in this instance and the original decree is not as long as that approved in Estate of Kimball, supra. In this instance, the district court orally pronounced that any tax liability should be shared equally. This court referred to that statement twice as if it had been in the decree. Kane v. Kane, supra, 577 P.2d at 174. The language, however, was not included in the original decree, and it is proper for the decree to be modified to reflect that actual judgment.
Principles reflected in earlier cases in this court manifest the propriety of the district court requiring the payment of any equal share of the taxes. We have held that a loan repayment provision is part of the equitable division of property. Prentice v. Prentice, Wyo., 568 P.2d 883 (1977). It is proper to provide for payment by one spouse of attorney's fees for the other as part of the property settlement. Bereman v. Bereman, Wyo., 645 P.2d 1155 (1982); Paul v. Paul, Wyo., 616 P.2d 707 (1980); Klatt v. Klatt, Wyo., 654 P.2d 733 (1982); Karns v. Karns, Wyo., 511 P.2d 955 (1973). In Bereman v. Bereman, supra, we also held that cancellation of a debt from one spouse to another, which in effect awards that spouse a sum of money, is a proper provision in a property settlement. In Karns v. Karns, supra, fees of appraisers were properly included in a property settlement. In Klatt v. Klatt, supra, we said that any other financial matters should also be considered in making a just and equitable disposition of the family assets.
" * * * A division of the marital estate of necessity involves an assignment of assets and liabilities." Paul v. Paul, Wyo., 616 P.2d 707, 715 (1980).
Under the theory of these cases the authority of the district court to provide for an equal payment of a federal income tax liability is well established, and we have no question as to the authority of the court to modify the decree to encompass its articulated intention to accomplish that end.
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