Kennedy v. Kennedy

• Decision Date: 23 September 1988
• Docket Number: No. 88-103,88-103
• Citation: 761 P.2d 995
• Parties: Keith C. KENNEDY, Appellant (Plaintiff), v. Melanie KENNEDY, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 995

761 P.2d 995

Keith C. KENNEDY, Appellant (Plaintiff), v. Melanie KENNEDY, Appellee (Defendant).

No. 88-103.

Supreme Court of Wyoming.

Sept. 23, 1988.

Rehearing Denied Oct. 6, 1988.

John A. Thomas of Phillips, Lancaster & Thomas, P.C., Evanston, for appellant.

Mark W. Harris of Harris & Morton, Evanston, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellant Keith C. Kennedy (husband) challenges a divorce decree entered March 22, 1988. He argues that the district court unfairly divided assets and obligations from his marriage to appellee Melanie Kennedy (wife). The issue raised in his initial brief was:

Whether the district court abused its discretion by inequitably dividing the property and debts of the parties in light of the amounts awarded to appellee for child support and alimony.

In his reply brief husband also argued:

Whether the district court abused its discretion by substituting its individual and extrajudicial knowledge for proof of facts not judicially cognizable.

We reverse and remand based on the argument contained in the reply brief.

The parties married on November 9, 1979, in Randolph, Utah. At that time husband was twenty years old, had a high school education, and had been trained as a welder in a Utah trade school. He had been welding for F.M.C. Corporation since finishing trade school. Wife was eighteen years old and had a high school education.

The parties had three sons born in 1980, 1983, and 1985. During the eight year marriage, wife worked in the home as a housewife and also had various part-time and temporary full-time jobs that paid near minimum wage. Husband continued to work for F.M.C. Corporation throughout the marriage. An F.M.C. pay stub showed that husband's gross income through July of 1987 was $25,807.69. Husband testified that he might be able to earn overtime in his job, but that the amount of overtime possible would vary and could not be predicted.

The parties accumulated personal and real property during their marriage including a 1971 pickup truck and camper, a 1979 Ford Pinto, a 1983 Chevrolet Blazer, various household appliances, two snowmobiles and other recreational items, miscellaneous household and personal items, and a family residence on a five-acre parcel of real estate. They bought land using a $3,000 gift from husband's father and a $17,000 loan from the First State Bank of Lyman. The parties completed and furnished the home in 1987. They paid for it with a $7,000 loan from wife's grandmother, $2,250 in proceeds from the sale of a mobile home they had on the property, and a $72,000 mortgage on the home from the First Wyoming Bank of Evanston. At the time the divorce decree was entered the parties owed wife's grandmother $4,000, and just under $72,000 to the bank on the mortgage debt. Other debts owed by the parties at that time totaled approximately $3,148, including $2,000 on the 1983 Blazer.

By the summer of 1987, irreconcilable differences had arisen between the parties. On August 19, 1987, husband filed a complaint for divorce. Wife answered two days later, and the case was tried on December 3, 1987. On December 7, 1987, the district court filed its decision letter in the case asking wife to submit a proposed decree. Wife did so on December 16, and husband filed objections to the proposed decree the next day. The district court filed additional decision letters on December 29, 1987, and January 20, 1988. After more correspondence with the trial court in February, 1988, a final divorce decree was entered on March 22, 1988.

Thet decree granted wife custody of the children and monthly child support totaling the greater of either $200 per month per child or twenty-five percent of husband's net income. Husband was ordered to pay for medical insurance covering the children. Husband received one acre of the real property and the house on it. He was also ordered to pay the mortgage debt on the house along with the rest of the marital debt. Husband also received modest funds in the parties' personal checking and savings accounts and was allowed to claim two of the children as dependents for federal income tax purposes. The district court awarded wife alimony for five years totaling the greater of either $250 per month or ten percent of husband's net income. She also received four acres of the real property, unencumbered, and none of the outstanding debt listed above. The court gave husband the option to purchase this four acres from wife for $2,000 per acre in cash and to have that amount credited against alimony. He never exercised that option. The district court also gave wife the 1983 Blazer and the 1979 Pinto and one of the children as a dependent for federal income tax purposes. The court divided other personal property item by item, and the parties split their 1987 federal income tax refund.

In this court husband challenges the decree by arguing in his initial brief that the property division was inequitable and reflected an abuse of district court discretion. Wife asserts the property division was fair based on the information before the trial court, and that we must defer to its findings and conclusions. In husband's reply brief, he claims the trial court improperly used its own personal opinion of land value to support its finding of the value of the four acres it awarded to wife. Husband asserts no other evidence existed in the record to support the $2,000 per acre value assigned to that land by the trial court. Wife moved to strike the reply brief under W.R.A.P. 5.03, as raising an issue not raised by her brief. This court considered that motion and allowed the appeal to proceed.

The controlling statute in this case, W.S. 20-2-114 (June 1987 Repl.), provides:

In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children. The court may decree to either party reasonable alimony out of the estate of the other having regard for the other's ability and may order so much of the other's real estate or the rents and profits thereof as is necessary be assigned and set out to either party for life, or may decree a specific sum be paid by either party.

A trial court determines the disposition of marital property and alimony under this statute as an exercise of its sound discretion. Broadhead v. Broadhead, 737 P.2d 731, 739-740 (Wyo.1987) (citing Paul v. Paul, 616 P.2d 707 (Wyo.1980)). This court is not a forum of first impression in divorce cases, and we will not interfere with the trial court's property division and alimony decisions unless the record clearly shows an abuse of trial court discretion. Id. We define judicial discretion as "a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. [Citation.]" Martin v. State, 720 P.2d 894, 897 (Wyo.1986). Further, we review the evidence on appeal in favor of the successful party below, ignoring the evidence of the unsuccessful party, and granting the successful party every reasonable inference that can be drawn from the record. Grosskopf v. Grosskopf, 677 P.2d 814, 818 (Wyo.1984).

These standards of review work in concert with the fundamental principle that a trial court's findings must be supported by sufficient evidence in the record. We have stated many times, in many different types of civil cases, that this court will not redecide questions of fact where sufficient evidence exists upon which the trial court could rationally base its findings. See, e.g., Wyoming Sawmills, Inc. v. Morris, 756 P.2d 774, 775 (Wyo.1988); In the Matter of Bagshaw, 753 P.2d 1044, 1045 (Wyo.1988); Miles v. CEC Homes, Inc., 753 P.2d 1021, 1023 (Wyo.1988) (citing Kvenild v. Taylor, 594 P.2d 972, 976 (Wyo.1979)). A finding rendered without sufficient evidence, however, is erroneous and constitutes an abuse of discretion...