Palm v. Palm, 89-109

Decision Date29 December 1989
Docket NumberNo. 89-109,89-109
Citation784 P.2d 1365
PartiesEdwin R. PALM, Appellant (Defendant), v. Mickii L. PALM and Ronald Sargent, Appellees (Plaintiff and Master).
CourtWyoming Supreme Court

Robert L. Nelson, Cheyenne, for appellant.

E. James Burke and Rhonda Sigrist Woodard of Hanes, Burke & Woodard, P.C., Cheyenne, for appellee Palm.

Ronald E. Triggs, Cheyenne, for appellee Sargent.

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

URBIGKIT, Justice.

We consider the confined issue of compensation awarded to a master following a divorce case appointment and subsequent removal by the district court for a pre-existing conflict. The issue extrudes from a hotly contested divorce proceeding about which dissatisfaction is apparent but from which no other appellate issues were pursued. We consider and affirm the compensatory award to the master of $2,660. 1 In actual context, present litigants are the master, Ron Sargent, and the husband, Edwin R. Palm, Jr.

Appellant, Edwin R. Palm, Jr., presents three issues: (1) authority and discretion of the district court to appoint a master; (2) propriety of compensating the master for partial performance before his disqualification and (3) sufficiency of the evidence to sustain the amount awarded.

After about seven years of marriage, Mickii Palm and Edwin R. Palm, Jr. came to split the sheets, but then tried to do it in near actuality during an acrimonious divorce lawsuit when all items of personal property seemed to invoke division and distribution contest. This is sometimes called the parakeet or grandfather clock divorce case. Incentive for argument was further added by the existence of a pre-marital property agreement initiating defensive claims of appellant that:

5. * * * the parties have acquired no real or personal property during the course of their marriage.

6. * * * any property division is governed by a Prenuptial Agreement executed by the parties.

On February 22, 1988, the district court resolved general issues of divorce by a decision letter with an included proviso:

The division of property will be resolved after both parties have submitted additional documents as the Court has requested.

* * * * * *

After I receive[ ] the supplemental filings concerning the property division, I shall resolve the other issues remaining in this matter.

Occurring next was the appointment of a master to divide personal property which the parties and their counsel had been unable to accomplish. Ron Sargent was named by district court order of April 7, 1988 which, as approved as to form by both litigants, provided:

THE ABOVE-ENTITLED MATTER having come on before the Court upon the oral Motions of the parties to resolve personal property issues and the Court having heard the arguments of counsel and having reviewed several lists submitted to it in the Trial of the issues of this matter and having further reviewed the file herein and being fully advised does order as follows:

1. That the Court hereby appoints Ron Sargent as a Master for the purposes of listing the disputed personal property between the Plaintiff and Defendant and making recommendations regarding its ownership. That the costs of Mr. Sargent's services shall be borne and paid for by the defendant, Edwin R. Palm.

2. That the Master together with the Plaintiff and Defendant shall look at all personal property located in the home in which the Defendant is residing, all personal property which the Plaintiff has in her home and all personal property of the parties discovered to be elsewhere to determine the ownership of said property.

If the property is not in dispute as to ownership the party owning said property shall be allowed to take the property with him or her.

3. That disputed items of personal property shall be listed by the Master and he shall listen to the arguments of each of the parties concerning each piece of property and shall make his recommendation as to how the Court should distribute said items of disputed property.

4. The property which is determined by the Master and/or the Court to be marital property shall be listed separately. The parties shall accompany David Zwonitzer or another reputable auctioneer appraiser designated by Plaintiff to view the property and obtain an auction appraisal of the value of the property. Defendant shall pay Plaintiff the percentage of the auction appraised value of the property, without any amounts deducted for commission or costs, as the Court determines should belong to Plaintiff, and Defendant shall then be entitled to keep the property. If the Defendant chooses not to purchase the property, it should be auctioned and the proceeds divided between the parties in the percentages determined by the Court.

5. That the distribution of personal property as anticipated under this Order should be accomplished as soon as reasonably possible.

On August 30, 1988, Sargent filed a master's report which listed everything down to mailing labels, cloth flowers and paper napkins in six separate lists, including more than 400 defined items. In conjunction with filing the report, he also submitted a statement to appellant's attorney totaling $2,945 for services rendered to which immediate objection was taken. A hearing was held by an order to show cause in early December to consider the fee objection. While that proceeding was pending before final decision, appellant filed an objection to Sargent acting as master and a motion to set aside Schedule C and other property division recommendations. After a considerable amount of additional fussing and filings, the contested judgment for the master's fee was entered on March 13, 1989, from which this appeal is taken. 2

The divorce decree was entered September 28, 1988 and following entry of the master's fee order, the "Order Disqualifying Ron Sargent as Master, Setting Aside Schedule 'C' and Order Granting Judgment and Attorneys Fees" was entered on April 11, 1989. Appeal was neither taken from the decree of divorce nor the April 11, 1989 disqualification order which, in itself, did not reconsider the March 13th compensatory award.

I. AUTHORITY AND DISCRETION OF THE DISTRICT COURT TO APPOINT A MASTER

The mutual agreement by the parties for the appointment of a master was recognized in oral argument and briefing, as well as by attachments to the contested judgment with a concurrent understanding from the litigants that payment for services would be made by the husband. It is also established that both litigants knew in advance of the district court designation that the proposed master, Sargent, in the presence of the husband, had engaged at the request of the wife in taking a video tape inventory of personal property at the parties' residence. Following district court conference (not reported), the parties' proposal to appoint Sargent as master to divide the personal property was accepted by the district judge. Thereafter, objection was not taken by either party to the deputation or performance until appellant objected in December 1988 following his receipt of the master's bill for fees.

Any claim of abuse of discretion in assignment is foreclosed by failure to timely object or, as in this case, actual acceptance. If objection to the appointment is to be taken by a litigant, it must be made timely by filed objection and, if possible, before performance of the service as master is undertaken by the appointee. See B & W Cattle Co. v. First Nat. Bank of Hereford, 692 S.W.2d 946 (Tex.App.1985). United States v. Conservation Chemical Co., 106 F.R.D. 210, 227 (W.D.Mo.1985) states:

Whether the combination of circumstances which prompted the appointment of a Special Master constitutes an "exceptional condition" justifying the reference is a procedural matter to which personal objection should be made, unless as a matter of law the trial court abused its discretion concerning the appointment. * * * In particular, the nature of an objection to the appointment of a Special Master should be specifically stated, and a party has no right to rely on the objection of another. * * * In general, objections must be sufficiently specific to bring into focus the precise nature of the alleged error.

The failure to make timely objection, either at the time of the order of reference or promptly thereafter, constitutes a waiver of error. Charles A. Wright, Inc. v. F.D. Rich Co., 354 F.2d 710 (1st Cir.), cert. denied 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673, reh'g denied 385 U.S. 890, 87 S.Ct. 14, 17 L.Ed.2d 122 (1966); McGraw-Edison Co. v. Central Transformer Corp., 308 F.2d 70 (8th Cir.1962); Fisher v. Harris, Upham & Co., Inc., 61 F.R.D. 447 (S.D.N.Y.1973). "Parties should object to a reference to a magistrate or a special master at the time the reference is made or within a reasonable time thereafter." Spaulding v. University of Washington, 740 F.2d 686, 695 (9th Cir.), cert. denied 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). A litigant cannot claim error in exercised discretion unless disapproval of a proposed decision is recorded. Sharp v. Sharp, 671 P.2d 317 (Wyo.1983); Louth v. Kaser, 405 P.2d 276 (Wyo.1965); Debruyn v. Golden Age Club of Cheyenne, 399 P.2d 390 (Wyo.1965). A recent statement of the rule is that "[a] party cannot appeal from a judgment or order to which the party has [substantively] consented." State v. Coheley, 549 So.2d 483, 483 (Ala.1989).

Disposing of abuse of discretion, there remains the appellant's denial of the district court's actual delegation authority. See B & W Cattle Co., 692 S.W.2d 946. Our decision in Cross v. Cross, 586 P.2d 547 (Wyo.1978) and W.R.C.P. 53 (similar to F.R.C.P. 53) is dispositive. See In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo.1988), cert. granted in part 488 U.S. 1040, 109 S.Ct. 863, 102 L.Ed.2d 987, aff'd 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342, reh'g denied 492 U.S. 938, 110 S.Ct. 28, 106...

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