Klatt v. Klatt, 5722

• Decision Date: 06 December 1982
• Docket Number: No. 5722,5722
• Citation: 654 P.2d 733
• Parties: Walter E. KLATT, Appellant (Defendant), v. Dorthy KLATT, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 733

654 P.2d 733

Walter E. KLATT, Appellant (Defendant), v. Dorthy KLATT, Appellee (Plaintiff).

No. 5722.

Supreme Court of Wyoming.

Dec. 6, 1982.

Harry E. Leimback, Casper, for appellant.

Ralph W. Boynton, Casper, for appellee.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

This is an appeal by the husband from a decree of divorce. Appellant's four issues are:

"1. Did the Court error [sic] in ordering the sale of all property, including the defendant's business * * *.

"2. Whether the evidence was sufficient to permit the Court a considered decision as to a proper property division.

"3. Whether the Court abused its discretion when it provided that the parties agree within thirty days to a division of all of the property including the business, and if they could not agree, then the property and the business was to be sold and divided.

"4. Whether the evidence was sufficient to justify the awarding of attorney's fees."

We will affirm.

At the time of the divorce the parties had been married 24 years and had two minor children, ages 16 and 17. Fifty-five year old appellee had some physical disability, a minimum education and employment as a janitor. Appellant, self-employed most of his life, operated Walt's Hide and Metal Salvage, Inc.

The parties owned a home, business property and unimproved land. The business was a family corporation and both parties were officers. The corporation owned tools worth about $500 and certain vehicles. The business had deteriorated since 1979, and the real property is subject to indebtedness. The only liquid assets were less than $400 in business and personal accounts. Appellant had an IRA account, but did not have any idea how much was in it.

There was little credible evidence at the trial to show the value of the real property, personal property, or value of the family business. Before trial appellant promised to furnish appellee a financial statement, but this information never surfaced. Appellee tried to subpoena appellant's financial records, but was unsuccessful.

The trial court granted appellee a divorce and denied appellant's counterclaim for divorce. Appellee was awarded custody of the two minor children and appellant was ordered to pay $150 per month for the support of each child. The divorce decree awarded each party personal effects and other items of personal property. The court ordered appellant to pay appellee's attorney fees in the sum of $540; and finally, the court ordered that all real property and the personal property used in the business be sold and the net equity be divided equally between the parties.

In Paul v. Paul, Wyo., 616 P.2d 707, 712 (1980), this Court summarized principles that govern divorce actions in Wyoming. (internal citations omitted):

"1. The trial court has great discretion in dividing the property. '[A] just and equitable division is as likely as not to be unequal.' There are 'no hard and fast rules' governing property divisions.

"2. The trial court's discretion won't be disturbed except on clear grounds.

"3. The Wyoming Supreme Court cannot constitute itself as a court of the first instance to divide property in divorce cases.

"4. 'Generally speaking, a settlement [property settlement] needs to be judged on an overall basis and not necessarily on the basis of separate parts.'

"5. The length of marriage is a consideration.

"6. Judicial discretion should not be exercised so as to reward one party and punish the other. But the court should consider the parties' merits.

"7. Joint ownership of property resulting from a demonstrated intent to share is a 'burden imposed upon the property for the benefit' of both owners; the statute directs consideration of this burden as one factor.

"8. The court should consider through which party the property was acquired.

"9. The court should consider the condition in which the parties will be left after the division.

"10. An award of property is a preferable, modern substitute for alimony.

"11. A property division may reach the separate property of either spouse.

"12. The question of who pays the attorney fees is a part of the property division."

Although the principles listed in Paul v. Paul, supra, do not purport to be exhaustive, we believe that most of the principles apply here.

" * * * As an appellate court, we consider that our power to disturb a property settlement fixed by a trial judge is limited indeed. There must be a clear abuse of discretion before we will upset or adjust such a settlement. We consider 'abuse of discretion,' to be such abuse as shocks the conscience of the court. It must appear so unfair and inequitable that reasonable persons could not abide it.

"We will not--except in extreme circumstances--reach in and readjust property distributions which our able trial judges have described after presiding over the trial which furnishes them with great advantage for decision-making in such matters.

"The question cannot be, What would we have done as trial judges? but must be and is, Did the trial judge act so outrageously in his property settlement decision as to constitute an abuse of discretion?" Paul v. Paul, supra, at 714.

I

Section 20-2-114, W.S.1977, provides in part:

"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. * * * "

Appellant claims that by selling the real and personal property used in the family business he will be put out of business, and will be required to find employment and income opportunities elsewhere. We are not convinced that this is so. He is free to purchase at the sale what tools and business property he needs to operate the business. The purchase price required can easily be obtained from his equity in the real and personal property being sold. He also has equity in the parties' residence and unimproved lots which can be applied to purchase the business property. His liquidity should be improved by disposing of the non-income producing property.

In Beckle v. Beckle, Wyo., 452 P.2d 205, 208-209 (1969), the husband made the same argument appellant makes here, that is, the court's order would put him out of business. We said:

"Of course, that would be true no matter what kind of business the parties owned. When a marriage ends in divorce and the business property has to be divided, the business will not thereafter be the same.

"Unfortunately, appellant has been silent as far as suggesting a more workable plan which would still assure the wife a just and equitable share of the property being distributed. Even if such a plan could now be conceived, it would be difficult for us to put it into effect without constituting our court a court of the first instance to divide the property. We have already indicated such is not the function of an appellate court.

"If appellant has something better to suggest, aside from a material change in the shares of the respective parties, it should have been presented to the district court, since generally matters not presented first to to the court below cannot be raised on appeal. [Citation.]"

If appellant here had a more workable plan to distribute the property of the marriage, he should have presented it at the trial; instead, he remained silent.

In Barbour v. Barbour, Wyo., 518 P.2d 12, 16 (1974), the court ordered a ranch sold and the proceeds divided. Here again the husband claimed that he would be put out of business. We said:

" * * * He offered no alternative to the method of division as adopted by the trial court, and if he had such a plan he had an obligation to present it to the trial court. Beckle v. Beckle, Wyo., 452 P.2d 205 at 209. When business property has to be divided neither the business nor the role of the parties will be the same. Young v. Young, Wyo., 472 P.2d 784. Even though the ranch property was ordered sold there was nothing to preclude the husband from purchasing the ranch. He had a one-half interest in the property and all he would need do, in effect, is buy the wife's one-half interest. He made no argument that this could not be done, and the record indicated this was a reasonable possibility."

In Young v. Young, Wyo., 472 P.2d 784, 785 (1970) appellant claimed former decisions by this Court show a historical policy to allow the husband to retain all of the assets which the husband uses in making a living. We said:

"We fail to find in any of the cases cited by appellant any support for his claim that there has been a policy to allow all assets which the husband uses in making a living to be retained by him. A trial court might very well consider it equitable and proper to award to a husband assets used by him in making a living, if the wife was otherwise properly provided for either in property or alimony."

Appellant cites Piper v. Piper, Wyo., 487 P.2d 1062 (1971), in support of his claim that the trial court did not consider the condition in which the parties will be left after distribution of the property. There is no comfort in Piper for appellant. The trial court in Piper applied the principles previously announced by this Court and considered the source of the property in its order. We do not see the application of Piper; but in any event, nothing was said there that is contrary to the disposition of the property made here by the trial court.

As far as the record reveals, all property was accumulated during 24 years of marriage. This being so, it certainly was not unreasonable to award each party half of the property. The trial court did not abuse its discretion in ordering all the property sold and an equal division of the parties' equity.

II

Appellant contends that there was not sufficient evidence to permit the...