Lund v. Lund, s. 91-261

• Decision Date: 25 March 1993
• Docket Number: Nos. 91-261,91-262,s. 91-261
• Citation: 849 P.2d 731
• Parties: William S. LUND, Appellant (Defendant), v. Janice M. LUND, Appellee (Plaintiff). Janice M. LUND, Appellant (Plaintiff), v. William S. LUND, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 731

849 P.2d 731

William S. LUND, Appellant (Defendant), v. Janice M. LUND, Appellee (Plaintiff).

Janice M. LUND, Appellant (Plaintiff), v. William S. LUND, Appellee (Defendant).

Nos. 91-261, 91-262.

Supreme Court of Wyoming.

March 25, 1993.

James L. Applegate, Hirst & Applegate, Cheyenne, and James B. Page, Page & Associates, P.C., Boulder, CO, for William S. Lund.

Floyd R. King, King & King, Jackson, for Janice M. Lund.

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

THOMAS, Justice.

The significant, substantive issue in this case is whether the trial court erred in arriving at a division of marital property that did not invoke an antenuptial agreement which had been adjusted by a later agreement. There is a threshold question, involving legal and judicial ethics, which is whether this case must be reversed and remanded for a new trial because of misconduct of counsel for the wife and the court in engaging in an ex parte hearing from which counsel for the husband and his client were excluded. A cross-appeal has been taken by the wife, alleging error in the failure of the trial court to award attorney fees and costs to her in connection with this divorce action and other ancillary litigation. We hold the ex parte hearing clearly was improper and cannot be condoned under the Canons of Judicial Conduct and ethical rules governing the bar. However, we hold no reversible error should be attributed to the conduct of that hearing since it did not impact any substantial rights of the husband. With respect to the question on the merits, however, we hold the trial court was obliged to enforce the agreements of the parties to the marriage, at least in the absence of a cogent rationale justifying its refusal to apply those agreements. We reverse and remand for a new trial on the division of the marital property. Because of this disposition, we do not address the wife's cross-appeal with respect to the propriety of the denial by the trial court of attorney fees and costs to the wife.

The appeal and cross-appeal were consolidated for purposes of briefing and oral argument. In his opening brief as appellant, the husband states these issues:

I. Whether the trial court erred as a matter of law in failing to distribute the parties' assets in accordance with the antenuptial agreement.

II. Whether the errors in the order nunc pro tunc demonstrate plain error and an unconscionable abuse of discretion.

III. Whether the trial court's distribution of assets was shocking to the conscience and an abuse of discretion.

IV. Whether the trial court's ex parte hearing with Mrs. Lund and her attorney requires a remand for a new trial.

As appellee and cross-appellant, the wife asserts these issues:

I. Did the trial court exercise its sound discretion in determining the disposition of the marital assets?

II. Did the trial court abuse its discretion in failing to award appellee her attorney's fees and costs incurred in connection with the divorce and related proceedings?

The parties, Janice M. Lund and William S. Lund, met in December of 1977 and, after dating for several years, they were married on June 6, 1981. Both had been married twice previously, and each of them had children from the prior marriages.

Mr. Lund earned a degree from Stanford University in 1956 and, in the course of his career, he was employed as a petroleum engineer; was involved in the banking industry; assisted in forming one bank and served on the board of two banks; was engaged in industrial marketing; served as a college president; served on the boards of internationally known firms and organizations; and also was self-employed as a business consultant as well as a management consultant. Since 1971, Mr. Lund's primary occupation has been that of a real estate investor and developer. He had a net worth in excess of $5 million at the time he married Mrs. Lund.

Mrs. Lund's net worth at the time of the marriage was less than $200,000. She was first married when she was fourteen, had two children of that marriage, and was married for eleven years. In 1968, she married for the second time and was divorced two years later. She remained single after that divorce until her marriage to Mr. Lund in 1981. Mrs. Lund finished high school through home teaching and later attended Taft College, Bakersfield College, Fresno State, and U.C.L.A., studying psychology and business, but she never did complete a degree. She has had a varied employment history, including working for a school district psychology department in evaluations and testing; working for an accounting firm; managing a doctor's office; working in a public relations department and also working as a real estate salesperson.

Because of the difference in their relative net worth, Mrs. Lund insisted that she and Mr. Lund enter into an antenuptial agreement prior to their marriage. The antenuptial agreement provided that the separate property of the parties, whether obtained before or during the marriage, would remain the separate property of each, except that Mrs. Lund was to receive 50% of the equity in two homes if they remained married for at least four years. (The agreement appears to contemplate a division of money rather than the property.)

During their marriage, the Lunds lived in an affluent style commensurate with Mr. Lund's wealth. They separated in August of 1987, however, because Mr. Lund refused to slow down and continued to pursue high risk business ventures. Prior to that time, in 1985, one of the two homes in which Mrs. Lund was to receive a 50% equity had been sold. After the separation, the Lunds entered into another agreement dated September 25, 1987, entitled "First Amendment to Antenuptial Agreement." The thrust of this agreement was that Mr. Lund would pay Mrs. Lund $1 million. We note that title to "Eagle's Landing," a residence located in Teton County, Wyoming, already had been transferred to Mrs. Lund. At the same time, another agreement was prepared entitled "First Amendment to Restated Shareholder's Agreement." This latter document does not enter into this action except to the extent that it demonstrates a concerted effort by the parties to resolve their differences. Still later, in November of 1987, the other home in which Mrs. Lund was to have received 50% of the equity was sold.

At the end of the trial, the court issued an order that directed Mr. Lund to pay Mrs. Lund the sum of $300,000 plus interest. Mr. Lund, through counsel, filed a Motion to Modify Order because of factual errors in the initial order. In an order nunc pro tunc, the trial court corrected some of the numerical errors that had been called to the court's attention by Mr. Lund, but the court did not change the amount Mr. Lund was ordered to pay Mrs. Lund.

In its order nunc pro tunc, the trial court ruled that, while Wyoming recognizes the validity of antenuptial agreements as contracts, it would not enforce the agreement between the Lunds because the properties which were the subject of the agreement had been sold, thus making it impossible to satisfy the obligations under the antenuptial agreement. Further, the trial court found the First Amendment to Antenuptial Agreement was void and unenforceable on several separate and independent grounds. Mr. Lund appealed from the order of the court, which was followed by a cross-appeal by Mrs. Lund. The primary substantive issue before this court is the failure of the trial court to enforce the antenuptial agreement.

Before we resolve the substantive issue, we address the threshold question of whether the case must be reversed and remanded for a new trial because of the misconduct of counsel and the court in pursuing an ex parte hearing from which Mr. Lund and his attorney were excluded. On the third day of the trial, while Mr. Lund's attorney was cross-examining Mrs. Lund about the location of $1.2 million Mrs. Lund had placed in accounts in foreign countries in violation of a previous court order, the court interrupted the trial proceedings to confer with the attorneys for the respective parties. After that conference, the court ordered Mrs. Lund to have those funds immediately transferred to depositories inside the continental United States and directed her to furnish proof of the transfer to the court. The court then recessed until such time as that transfer could be accomplished. After the recess, the trial judge conducted a hearing in her chambers involving the judge, Mrs. Lund, and Mrs. Lund's attorney concerning those assets. The record discloses that the law clerk of the Ninth Judicial District as well as the official court reporter for the trial judge also were in attendance. The proceeding was reported.

The next day, Mr. Lund's attorney objected to the ex parte hearing, stating:

[Mr. Lund's Counsel]: * * * Essentially when we recessed yesterday, the Court ordered some action to take place, and I understand that there were--[Mrs. Lund's counsel] and Mrs. Lund were in chambers with the Court on the record. I don't know what transpired, and firstly, I'm curious to see if the Court is satisfied that the funds have been transferred over to the United States. I have my doubts as to whether that will ultimately be accomplished, and I think unless it's pursued vigorously, the--we will be frustrated in our efforts, and I think the Court will.

The court responded to counsel's statement in this way:

The matter has been concluded, taken care of to the Court's satisfaction including documentary evidence of the transactions that have taken place. * * * If the matter should become of import, we'll reconsider it. As for right now, the matter is under control to the Court's satisfaction.

Still later in the trial, counsel for Mr. Lund made a more formal objection to the ex parte hearing [Mr. Lund's counsel]: * * * At that time, the Court went into chambers with [Mrs. Lund's attorney] and Mrs. Lund, and I believe the court reporter,...