Seherr-Thoss v. Seherr-Thoss
| Citation | 141 P.3d 705,2006 WY 111 |
| Decision Date | 31 August 2006 |
| Docket Number | No. 06-10.,No. 05-237.,05-237.,06-10. |
| Parties | Denise SEHERR-THOSS, Appellant (Plaintiff), v. Roger SEHERR-THOSS, Appellee (Defendant). |
| Court | United States State Supreme Court of Wyoming |
Representing Appellant: Kenneth S. Cohen of Cohen Law Office, P.C., Jackson, Wyoming.
Representing Appellee: Bret F. King of King and King, LLC, Jackson, Wyoming.
Before VOIGT, C.J., and GOLDEN, HILL*, KITE, and BURKE, JJ.
[¶ 1] Denise Seherr-Thoss (Wife) appeals an order of the district court enforcing a prenuptial agreement (the Agreement) and dividing the marital estate. On appeal, Wife challenges the validity of the Agreement and the propriety of the district court's division of certain marital property pursuant to specific provisions of the Agreement. In a separate appeal, Wife challenges the sufficiency of an award of attorneys' fees. We will affirm the district court's property distribution in part and reverse in part and affirm the district court's award of attorneys' fees.
[¶ 2] In Case No. 05-237, Wife sets forth the following statements of the issues:
The district court erroneously held that the Premarital Agreement is enforceable, in spite of its finding that Appellee breached the Agreement by failing to make any of the annual $10,000 payments to Appellant required under the Agreement.
The district court erred when it ruled that Article III, Paragraph 3 of the Premarital Agreement controlled the distribution of the sale proceeds from the Arizona house (rather than Article I, Paragraph 4), and that Appellant was not entitled to any portion of the sale proceeds.
The district court erred when it ruled that, pursuant to Article I, Paragraph 3 of the [Premarital] Agreement, Appellant was entitled to four annual payments of $10,000 rather than five annual payments, and Appellant is therefore owed an additional $10,000 [for 2004, and a pro rata sum for 2005].
The district court erred when it held that the parties were married at least three years but less than four years, and that pursuant to Article III, Paragraph 4 of the [Premarital] Agreement, Appellant was entitled to a lump sum payment of $40,000. The district court should have held that the parties were married at least four years but less than five years and that Appellant [is] owed a lump sum payment of $50,000.
The district court erred when it held that [Wife] was required to repay [Husband] the sum of $20,000 based on her withdrawal of funds from joint accounts immediately prior to filing for divorce.
Appellee Roger Seherr-Thoss (Husband) responds with statements of the issues that parallel those set out above though framed in support of the district court's ruling.
[¶ 3] In Case No. 06-10, Wife sets out the following:
Did the district court abuse its discretion in awarding to [Wife] less than half of the attorneys['] fees incurred by her in the divorce proceeding under W.S. § 20-2-111, in view of the fact that [Wife] did not have the resources to pay an attorney to litigate the proceeding; and that [Husband] was a wealthy man who throughout this litigation took the position — ultimately rejected by the district court — that [Wife] was not entitled to any further settlement distribution; and that [Husband] had significantly breached the Premarital Agreement he was seeking to hide behind?
Husband responds:
Did the District Court act arbitrarily and capriciously when it awarded [Wife] $15,000 in attorney's fees pursuant to W.S. § 20-2-111[?]
[¶ 4] The parties were married on October 1, 2000. Prior to the marriage, they entered into a prenuptial agreement. The Agreement set forth the parties' basic intentions:
The parties desire to define their respective property and rights in the event of a dissolution of their marriage, and to limit or release their prospective rights of inheritance from each other.
. . . .
The parties desire by this Agreement to provide that all real and personal property owned by either of them at the time of the marriage and all real and personal property coming to them from any source during the marriage, including inheritance, shall be their respective sole and separate property.
The parties further desire by this Agreement to waive and relinquish any rights heretofore or hereafter accruing to either of them for spousal support from the other in the event of dissolution of their forthcoming marriage.
. . . .
This Agreement is being made, in part, with the express intention of keeping such property, income and earnings or increase from each party's business, investments or occupations the sole and separate property of the party earning or acquiring came to use and dispose of as he or she see fit as if no marriage had been entered into.
The substantive provisions of the Agreement that are relevant to the dispute before us are these:
[Article I, Paragraph 3] Gifts to Denise During Marriage. Roger agrees to pay to Denise the sum of $10,000 per year for so long as the parties are married to each other. The parties agree that the first of such payments shall be made no later than December 30, 2000. . . .
[Article I, Paragraph 4] Transfers Between the Parties. Notwithstanding the provisions of this Agreement, either party shall have the right to transfer or convey to the other any property or interest therein which may be lawfully conveyed or transferred during his or her lifetime or by will or otherwise upon death, and neither party intends by this Agreement to limit or restrict in any way the right and power to receive any such transfer or conveyance from the other. No such transfer or conveyance shall be deemed an amendment, in whole or in part, or a termination of this Agreement or any portion thereof, nor shall such be construed to limit or adversely affect the purpose and intent of this Agreement establishing the separate property of the parties.
[Article III, Paragraph 3] Property Acquired by Joint Contributions. Except as specifically provided in Article II paragraph 4 hereof, each of the parties shall own, as their separate property, an interest in any property acquired by them during the marriage by joint contributions of separate property, notwithstanding the manner in which such property is titled. The interest of each party shall be equal to that percentage which he or she contributed to the acquisition of such property. The provisions of this Article III paragraph 3 may be altered with respect to specific property, but only by a separate written agreement, signed by both parties, and referring to the specific item of property to which such agreement pertains.
[Article III, Paragraph 4] Lump Sum Settlement. The parties agree that Roger will pay to Denise the following lump sum amounts in the event of divorce within the first five years of marriage, as a full and final settlement for all property and alimony issues: a) if the parties were married less than 1 year, Roger will pay Denise $10,000; b) if the parties were married at least one year, but less than 2 years, Roger will pay Denise $20,000; c) if the parties were married at least 2 years but less than 3 years, Roger will pay Denise $30,000; d) if the parties were married at least 3 years but less than 4 years, Roger will pay Denise $40,000; and e) if the parties were married at least 4 years but less than 5 years, Roger will pay Denise $50,000. Such payment shall be made in full within 30 days following the court order finalizing the divorce, except that if the payment owing to Denise is $50,000, Denise agrees Roger may make two equal installments over a period of two years.
[¶ 5] Wife filed for divorce on January 7, 2004. On September 10, 2004, she filed a motion for partial summary judgment contesting the enforceability of the Agreement. Wife argued that Husband had breached the Agreement by failing to make the annual $10,000 payments required under Article I, Paragraph 3. Husband filed a cross-motion for partial summary judgment arguing the continued validity of the Agreement. After an unreported hearing on the competing motions was held on October 19, 2004, the district court issued an order concluding that the Agreement was valid and enforceable and granting Husband's motion.
[¶ 6] On April 18, 2005, a hearing was held on the division of the marital estate under the provisions of the Agreement. The hearing was not recorded and Wife did not obtain a statement of the evidence pursuant to W.R.A.P. 3.031 (LexisNexis 2005).
When this Court does not have a properly authenticated transcript before it, it must accept the trial court's findings of fact upon which it bases any decisions regarding evidentiary issues. Capshaw v. Schieck, 2002 WY 54, ¶ 21, 44 P.3d 47, ¶ 21 (Wyo.2002). The failure to provide a transcript does not necessarily require dismissal of an appeal, but our review is restricted to those allegations of error not requiring inspection of the transcript. Lacking a transcript, or a substitute for the transcript, the regularity of the trial court's judgment and the competency of the evidence upon which that judgment is based must be presumed. Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo.1996); Combs v. Sherry-Combs, 865 P.2d 50, 55 (Wyo.1993); and see Wood v. Wood, 865 P.2d 616 (Wyo. 1993) ().
Harshberger v. Harshberger, 2005 WY 99, ¶ 3, 117 P.3d 1244, 1246-47 (Wyo.2005) (quoting Burt v. Burt, 2002 WY 127, ¶ 7, 53 P.3d 101, 103 (Wyo.2002)). Since we must accept the district court's findings of fact, we set forth the following findings and conclusions from the Decree of Divorce that are pertinent to the issues on appeal:
6. A Premarital Agreement ("the Agreement") was executed on September 28, 2000. The Court finds the Agreement is fair and equitable, the parties entered into the agreement knowingly and willingly, and neither party was...
To continue reading
Request your trial
-
In re Erpelding, 16-1419
...; Wisconsin, Wis. Stat. Ann. § 766.58(3)(d), (9), (12) (West, Westlaw through 2017 Act 136); and Wyoming, see Seherr–Thoss v. Seherr–Thoss , 141 P.3d 705, 711, 715 (Wyo. 2006) (enforcing premarital-agreement provision limiting alimony).Three jurisdictions categorically do not allow waiver o......
-
Gas Sensing Tech. Corp. v. New Horizon Ventures Pty LTD
...for the jury.6 "In order to warrant termination or repudiation of a contract," a breach must be substantial or material. Seherr-Thoss v. Seherr-Thoss, 2006 WY 111, ¶ 14, 141 P.3d 705, 713 (Wyo. 2006) (citing Stillwell Welding Co. v. Colt Trucking, 741 P.2d 598, 600 (Wyo. 1987) ). To determi......
-
Witowski v. Roosevelt
...on issues of law, however, are reviewed de novo. Plymale v. Donnelly, 2007 WY 77, ¶ 21, 157 P.3d 933, 938 (Wyo.2007); Seherr-Thoss v. Seherr-Thoss, 2006 WY 111, ¶ 11, 141 P.3d 705, 712 1. Full Faith and Credit to Virginia Divorce Decree [¶ 15] The district court ruled that the parties' Virg......
-
Three Way, Inc. v. Burton Enterprises, Inc.
...the appellant's duty to bring a complete record to this Court, and Burton was the appellant in regard to this issue. Seherr-Thoss v. Seherr-Thoss, 2006 WY 111, ¶ 26, 141 P.3d 705, 717 in Landeis, this Court's determination was based upon an "implied contract involved in `unjust enrichment.'......