Merritt v. Merritt, No. 4938

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore GUTHRIE; RAPER; ROSE
Citation586 P.2d 550
PartiesTimothy Joseph MERRITT, Appellant (Defendant below), v. Amy Jo MERRITT, Appellee (Plaintiff below).
Docket NumberNo. 4938
Decision Date14 November 1978

Page 550

586 P.2d 550
Timothy Joseph MERRITT, Appellant (Defendant below),
v.
Amy Jo MERRITT, Appellee (Plaintiff below).
No. 4938.
Supreme Court of Wyoming.
Nov. 14, 1978.

Page 552

E. James Burke of Hanes & Gage, P. C., Cheyenne, signed the brief and appeared in oral argument on behalf of the appellant.

D. N. Sherard, Wheatland, signed the brief and appeared in oral argument on behalf of the appellee.

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

RAPER, Justice.

This appeal is from a decree by which a divorce was granted to the plaintiff-appellee dissolving her marriage to defendant-appellant. The trial court also awarded custody of a minor child to plaintiff and divided property of the marital estate. On appeal, defendant claims that the trial judge erred in awarding a mobile home to the plaintiff in trust for the benefit of the minor child placed in custody of the plaintiff. Defendant further alleges error in the failure of the trial judge to distribute the two acres of land upon which the mobile home was situated.

We will affirm the district court and dismiss the appeal to the extent defendant asserts rights of a third person not a party to the action.

The complaint for divorce, child custody and support, amongst the usual allegations, included a claim that the parties owned or acquired a double-wide mobile home contributed by Roy Merritt, father of the defendant, to be used by the parties as their home.

" * * * that the modular home was placed upon land contributed by W. J. Brown, the Plaintiff's father; that the said Roy Merritt transferred the title to the modular home to the said W. J. Brown with the understanding that Plaintiff and Defendant would reside in the home with their son, Daniel Lee Merritt, expected to be born; that the fathers agreed that if the marriage survived for a period of ten years, W. J. Brown agreed to convey the tract of land and the title to the home to Plaintiff and Defendant; that the fathers furthermore agreed that if the marriage did not survive for a period of ten years, W. J. Brown would convey title to the modular home and the tract of land to the Plaintiff so that she could maintain the same as a home for the child of the parties; and that the title to the modular home is unencumbered;"

Plaintiff's complaint prayed that she be awarded the double-wide modular home. No mention of the two acres of land on which the modular home was situated was contained in the prayer. Defendant's answer to the complaint denied the allegations with respect to the mobile home.

The only real issue before us concerns the mobile home. At the trial, W. J. Brown testified that in mid-1975 Roy Merritt came to the Brown residence and handed him notarized titles to the mobile home. No transferee's name there appeared.

"He gave this to me and said he wanted me to hold it. * * * I don't understand yet why I have it, but he said that if this marriage didn't work out, I was to hold these papers for 10 years and that at the end of that time give the title to the house to Amy and Tim. I would give them the title to this house along with title to 2 acres of land where the house was sitting, and his main concern was that if the marriage did not last, there was no reason specified if it did not last, that this house was to go to Amy and Danny so that she would have a place to raise Danny. His main concern was for his grandson."

At one point in the cross-examination, the defendant's attorney placed the testimony in his own words:

"MR. GAGE: So, what happened? Did Mr. Merritt just walk in and say here's the title to the house. I want you to hold it for 10 years. If the marriage doesn't succeed, the house is to go to Amy and Danny. Was that how it happened?

Page 553

"A. (By W. J. Brown) Yes, you're awful close to it. Right."

The title documents (since it was a double unit, there was a separate title for each half) to the mobile home were introduced into evidence. There was no objection by defendant.

The testimony of Roy Merritt was received in the form of stipulated testimony:

"It is stipulated to between the plaintiff and defendant's counsel that if Mr. Roy Merritt were here to testify, he would testify that shortly after the marriage of the parties, Roy Merritt, father of the defendant, contributed a double wide modular home for the use of the plaintiff and defendant as their home, that the modular home was placed upon land contributed by W. J. Brown, the plaintiff's father; that the said Roy Merritt delivered title to the modular home to the said W. J. Brown with the understanding that the plaintiff and defendant would reside in the home with their son Daniel Lee Merritt, expected to be born; that the fathers agreed that if the marriage survived for a period of 10 years, W. J. Brown agreed to convey the tract of land and the title to the home to the plaintiff and defendant; that the fathers furthermore agreed that if the marriage did not survive for a period of 10 years for reason of the defendant's leaving the plaintiff, W. J. Brown would convey title to the modular home to the plaintiff so that she could maintain the same as a home for the child of the parties, and that title of the modular home as a home for the child of the parties; and that's then the end of the stipulation."

After the stipulation was entered into the record, W. J. Brown was recalled as a rebuttal witness to testify:

"Q. And you have just heard a stipulation read into the record. I believe that that stipulation confirms your previous testimony almost verbatim except for one phrase that was inserted, and the phrase inserted was I will read the sentence, 'That the fathers furthermore agreed that if the marriage did not survive for a period of 10 years . . .' and then this language, '. . . for the reason that the defendant left the plaintiff, W. J. Brown would convey title to the modular...

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24 practice notes
  • Harrington's Estate, Matter of, No. 5606
    • United States
    • United States State Supreme Court of Wyoming
    • July 22, 1982
    ...v. Public Service Commission of Wyoming, Wyo., 626 P.2d 564 (1981); Hayes v. State, Wyo., 599 P.2d 569 (1979); Merritt v. Merritt, Wyo., 586 P.2d 550 (1978); Pritchard v. State Division of Vocational Rehabilitation, Department of Health and Social Services, Wyo., 540 P.2d 523 (1975); Wyomin......
  • Burak v. Burak, No. 2744, Sept. Term, 2014
    • United States
    • Court of Special Appeals of Maryland
    • December 7, 2016
    ...to a property settlement may intervene or be joined, we were not addressing the rights of a judgment creditor. Merritt v. Merritt , 586 P.2d 550, 554 (Wyo. 1978). Some states, notably those with community property laws, permit creditors to intervene in divorce actions as a matter of course.......
  • Broadhead v. Broadhead, No. 86-110
    • United States
    • United States State Supreme Court of Wyoming
    • May 12, 1987
    ...in divorce cases, we rely on the learned discretion of the trial court. Paul v. Paul, supra, 616 P.2d 707; Merritt v. Merritt, Wyo., 586 P.2d 550 Page 740 " ' "Inasmuch as a trial court's judgment cannot be disturbed except on clear grounds, we have seldom interfered with the action of the ......
  • Davis v. Davis, 2130821
    • United States
    • Alabama Court of Civil Appeals
    • May 22, 2015
    ...subject to a property settlement may intervene or be joined, we were not addressing the rights of a judgment creditor. Merritt v. Merritt, 586 P.2d 550, 554 (Wyo.1978). Some states, notably those with community property laws, permit creditors to intervene in divorce actions as a matter of c......
  • Request a trial to view additional results
24 cases
  • Harrington's Estate, Matter of, No. 5606
    • United States
    • United States State Supreme Court of Wyoming
    • July 22, 1982
    ...v. Public Service Commission of Wyoming, Wyo., 626 P.2d 564 (1981); Hayes v. State, Wyo., 599 P.2d 569 (1979); Merritt v. Merritt, Wyo., 586 P.2d 550 (1978); Pritchard v. State Division of Vocational Rehabilitation, Department of Health and Social Services, Wyo., 540 P.2d 523 (1975); Wyomin......
  • Burak v. Burak, No. 2744, Sept. Term, 2014
    • United States
    • Court of Special Appeals of Maryland
    • December 7, 2016
    ...to a property settlement may intervene or be joined, we were not addressing the rights of a judgment creditor. Merritt v. Merritt , 586 P.2d 550, 554 (Wyo. 1978). Some states, notably those with community property laws, permit creditors to intervene in divorce actions as a matter of course.......
  • Broadhead v. Broadhead, No. 86-110
    • United States
    • United States State Supreme Court of Wyoming
    • May 12, 1987
    ...in divorce cases, we rely on the learned discretion of the trial court. Paul v. Paul, supra, 616 P.2d 707; Merritt v. Merritt, Wyo., 586 P.2d 550 Page 740 " ' "Inasmuch as a trial court's judgment cannot be disturbed except on clear grounds, we have seldom interfered with the action of the ......
  • Davis v. Davis, 2130821
    • United States
    • Alabama Court of Civil Appeals
    • May 22, 2015
    ...subject to a property settlement may intervene or be joined, we were not addressing the rights of a judgment creditor. Merritt v. Merritt, 586 P.2d 550, 554 (Wyo.1978). Some states, notably those with community property laws, permit creditors to intervene in divorce actions as a matter of c......
  • Request a trial to view additional results

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