Overcast v. Overcast

• Decision Date: 13 October 1989
• Docket Number: No. 89-131,89-131
• Citation: 780 P.2d 1371
• Parties: Richard F. OVERCAST, Appellant (Defendant), v. Beth OVERCAST, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1371

780 P.2d 1371

Richard F. OVERCAST, Appellant (Defendant), v. Beth OVERCAST, Appellee (Plaintiff).

No. 89-131.

Supreme Court of Wyoming.

Oct. 13, 1989.

W. Keith Goody of Goody and Lubing, Jackson, for appellant.

Phelps H. Swift, Jr. of Mullikin, Larson & Swift, Jackson, for appellee.

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

URBIGKIT, Justice.

Appellant Richard F. Overcast challenges his contested divorce decree contending that the business property division by required sale is inequitable and an abuse of the trial court's discretion. His former wife Beth denies that contention and requests this court award her appellate fees and costs. We affirm the trial court's decision and deny appellate legal fees.

At the outset of their divorce proceeding, both the Overcasts were employed. Richard had worked three years as a construction project manager for Lincoln Property Company, earning between $54,000 and $69,000 in each of those years. Beth had been employed as the director of the Center Street Gallery in Jackson, Wyoming for nearly a year, receiving a gross salary of $2,000 per month. The parties' principal marital debts, other than certain minor household and medical bills, consisted of $127,426 remaining on a mortgage of the marital residence and a commercial storage unit facility near Wilson, Wyoming and about $46,500 in principal and unpaid interest on an alleged loan from Richard's parents. Excepting various items of household personalty and vehicles, the marital estate was comprised of the following major assets:

1. A 50% partnership interest in the Center Street Gallery;

2. A promissory note in the original principal amount of $20,000 made by the Center Street Gallery to a business owned and operated by the Overcasts;

3. A note in the original principal amount of $11,000 given in exchange for the sale of real property formerly owned by the Overcasts in Pinedale, Wyoming;

4. A promissory note in the original principal amount of $89,500 made by Motels of America, Inc. in exchange for the sale of commercial property formerly owned by the Overcasts south of Jackson, Wyoming; and

5. Real property in Wilson, Wyoming consisting of 10.2 acres, the marital residence and the Riverwest Storage facility valued at $658,000.

In its decree, the trial court awarded the parties equal shares in the amounts owed on the three promissory notes. Beth also received full ownership of their combined partnership interest in the art gallery, while Richard was required to satisfy, in its entirety, any obligation owed to his parents. Additionally, the trial court required the Overcasts to sell the Wilson property and evenly split the proceeds remaining after satisfying the mortgage debt and any costs associated with closing the sale.

It is the disposition of the Wilson property that Richard challenges as an abuse of the trial court's discretion in dividing the marital estate. He contended in trial court and now for appeal that the storage rental units located on that property provide him with his only source of income, and that fairness demands the estate be divided to afford him the same opportunity as his ex-wife, who retained her employment and partnership interests in the gallery, to earn a livelihood from the marital property. He therefore claims the trial court abused its discretion by denying him the option of some kind of installment purchase of his ex-wife's interest in the Wilson property or, alternatively, a permanent arrangement of continued co-ownership. ¹

This appeal does not test equivalency in divorce property division, but rather fairness in process to achieve desired equitability. Paul v. Paul, 616 P.2d 707 (Wyo.1980). Our evaluation of whether the trial court's property division is, in fact, equitable must proceed from the perspective of the overall distribution of marital assets and liabilities, rather than from a narrow focus on the effects of any particular disposition. Klatt v. Klatt, 654 P.2d 733, 735 (Wyo.1982); Paul, 616 P.2d at 712. From that perspective, the trial court is afforded considerable discretion to frame a distributive scheme appropriate to the peculiar circumstances of any individual case. We therefore hesitate to disturb such a scheme absent a showing that the trial court clearly abused its discretion. Sellers v. Sellers, 775 P.2d 1029, 1030 (Wyo.1989); Igo v. Igo, 759 P.2d 1253, 1255 (Wyo.1988); David v. David, 724 P.2d 1141, 1142-43 (Wyo.1986). To constitute an abuse of that discretion, the trial court's distribution of the marital property must shock the conscience and appear so unfair and inequitable that reasonable persons could not abide it. Grosskopf v. Grosskopf, 677 P.2d 814, 820 (Wyo.1984); Klatt, 654 P.2d at 735-36. A property division must be based on objective criteria and be neither arbitrary nor capricious. Sellers, 775 P.2d at 1032. Foremost among such "objective criteria" are those enumerated statutorily in the following manner:

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.

W.S. 20-2-114 (emphasis added). It is fundamental that on appeal, this court does not substitute its factual decision for the decision of the trial court with review limited to assessment of exercised discretion which is particularly general in marital property division. Broadhead v. Broadhead, 737 P.2d 731 (Wyo.1987); Kane v. Kane, 577 P.2d 172 (1978), aff'd 616 P.2d 780 (Wyo.1980).

In the present case, Richard singles out but one of those criteria to support his argument. That is, he asserts the property division effected by the divorce decree will leave him without a means to support himself. He also asserts he can no longer work in the construction business and the storage business which he counted on to provide for his support would be, if sold, no longer available. The record does not support his assertions. The record indicates, instead, that Richard is fifty-two-years old with considerable experience in the construction industry and that he quit his latest, highly paid job as a project manager shortly before trial for personal reasons. Additionally, he presented no evidence that he could not become similarly employed in the future. His claims to the contrary are supported by nothing more than his own speculative and questionable conclusions.

Richard's claim that the storage business could provide sufficient income both to support him and to permit him to contemporaneously purchase his ex-wife's interest in the property is, likewise, controverted. He presented no evidence that he could obtain the financing for such a buy-out based solely on the income derived from the storage business. To the contrary, his own testimony indicates the business could not support any further debt. After deducting mortgage payments and ordinary business expenses from the gross income produced by the business, but without consideration of the debt to Richard's parents which is allegedly chargeable to the business, Richard's calculations indicate a positive...