McBride v. McBride, 5078

• Decision Date: 15 August 1979
• Docket Number: No. 5078,5078
• Citation: 598 P.2d 814
• Parties: Dolores D. McBRIDE, Appellant (Defendant below), v. Wayne A. McBRIDE, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 814

598 P.2d 814

Dolores D. McBRIDE, Appellant (Defendant below), v. Wayne A. McBRIDE, Appellee (Plaintiff below).

No. 5078.

Supreme Court of Wyoming.

Aug. 15, 1979.

Larry N. Long, Salt Lake City, Utah and Robert A. Echard and Erik M. Ward, Ogden, Utah, for appellant.

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

THOMAS, Justice.

The sole issue for our concern is whether the district court abused its discretion in refusing to grant a motion for a new trial which was presented pursuant to Rule 60(b), W.R.C.P. We are unable to find from the record any abuse of discretion in this instance, and we affirm the ruling of the district court.

On August 9, 1978, a Decree of Divorce was entered in the District Court of the Third Judicial District in and for Sweetwater County which granted the Appellant an absolute divorce from the Appellee. The Appellant was awarded from the property of the parties an undivided one-half interest in and to the Stanley Hotel in Green River, Wyoming. (The other one-half interest in the Stanley Hotel was owned by a third party.) The Appellee was awarded the business known as Wayne's Sales and Leasing, including any and all interest in a tract of land in Sweetwater County containing 1.897 acres, more or less. Other items of property were awarded to the respective parties, pursuant to the Decree of Divorce, but those other items have no materiality in this appeal.

On September 5, 1978, the Appellant filed in the district court a Motion for New Trial Pursuant to Rule 60(b), Wyoming Rules of Civil Procedure, which stated that she sought relief on the basis of newly discovered evidence and the misconduct of Appellee in not revealing material information to the court which was known by him. This motion was denied by the district court.

The grounds for the motion are detailed in the Appellant's affidavit. It appears that there had been fire damage to the Stanley Hotel in February of 1978. The Appellant averred that the damage was in the neighborhood of $50,000; that the Appellee had failed to maintain the fire insurance so that there was no coverage for the loss; that Appellee had withheld information from the court about this situation; and that this constituted fraud or misconduct by the Appellee. In addition, the Appellant stated in her affidavit that the Appellee had failed to make mortgage payments on the hotel which had resulted in the imminence of foreclosure proceedings, and that there were federal tax liens against the hotel. The Appellant stated that she was unaware of this information because of a restraining order which Appellee has obtained. The order enjoined the Appellant from removing property from the Stanley Hotel and from annoying, interfering with or harassing employees at the Stanley Hotel.

The Appellant also stated in her affidavit that the two acres of commercial property which had been awarded to the Appellee had more than doubled in value because of a proposed shopping mall. The affidavit asserted that the Appellant was not aware of these facts, but they had all been known to the Appellee. She further stated in her affidavit, in a conclusory form, that the failure of the Appellee to divulge the information constituted fraud or other misconduct.

Rule 60(b), W.R.C.P., provides in pertinent part as follows "(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: * * * (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; * * *."

Rule 60(b), W.R.C.P., has been the subject of other decisions in this court. Atkins v. Household Finance Corporation of Casper, Wyoming, Wyo., 581 P.2d 193 (1978); Martellaro v. Sailors, Wyo., 515 P.2d 974 (1973); Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972); and Kennedy v. Kennedy, Wyo., 483 P.2d 516 (1971). From these cases the following principles can be gleaned: An order denying relief under Rule 60(b) is appealable, but proceeding under the rule is not to be regarded as a substitute for an appeal. Since the granting of relief pursuant to that rule is a matter of the exercise of discretion by the trial court, on review the appellate court is limited to the question of whether there has occurred an abuse of the trial court's discretion. It was the Appellant's burden before the...