Wallop v. Wallop

Decision Date27 April 2004
Docket Number No. 02-248, No. 02-249.
Citation88 P.3d 1022,2004 WY 46
PartiesFrench Carter WALLOP, Appellant (Defendant), v. Malcolm WALLOP, Appellee (Plaintiff). Malcolm Wallop, Appellant (Plaintiff), v. French Carter Wallop, Appellee (Defendant).
CourtWyoming Supreme Court

Representing Appellant French Carter Wallop: Karen Budd-Falen of Budd-Falen Law Offices, P.C., Cheyenne, WY; and Clark W. Sessions and T. Mickell Jimnez-Rowe of Clyde, Snow, Sessions & Swenson, P.C., Salt Lake City, UT. Argument by Mr. Sessions.

Representing Appellee Malcolm Wallop: Ann M. Rochelle of Shively, Taheri & Rochelle, P.C., Casper, WY; and Rex Arney of Brown, Drew & Massey, LLP, Sheridan, WY. Argument by Ms. Rochelle.

Before LEHMAN and VOIGT, JJ., and DONNELL, BROOKS, and JAMES, District Judges.

LEHMAN, Justice.

[¶ 1] Appellant/Cross-Appellee French Carter-Wallop (Wife) appeals the district court's property division upon divorce, while Appellee/Cross-Appellant Malcolm Wallop (Husband) appeals the district court's ruling regarding his government retirement account. We affirm in part, modify in part, and reverse and remand in part.

FACTS

[¶ 2] Husband and Wife were married May 26, 1984. After nearly sixteen years of marriage, the parties separated on April 24, 2000. Two years later their divorce case was tried before the district court. Substantial testimony was given and numerous exhibits submitted. The parties each filed proposed findings of fact and conclusions of law. The district court issued its decision letter on June 20, 2002, and entered the final Judgment and Decree of Divorce on August 13, 2002. These appeals followed.

STANDARD OF REVIEW

[¶ 3] We recently recognized our longstanding standard of review in Hall v. Hall, 2002 WY 30, ¶¶ 11-12, 40 P.3d 1228, ¶¶ 11-12 (Wyo.2002):

Wyo. Stat. Ann. § 20-2-114 (Lexis 1999) governs the division of marital property:
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.
Decisions regarding the division of marital property are within the trial court's sound discretion, and we will not disturb them on appeal unless there was an abuse of discretion. Davis v. Davis, 980 P.2d 322, 323 (Wyo.1999). An abuse of discretion occurs when the property disposition shocks the conscience of this court and appears to be so unfair and inequitable that reasonable people cannot abide it. Id.
DISCUSSION
Ranch Valuation

[¶ 4] At trial, the primary asset in contention was the Canyon Ranch. Three separate valuations were prepared for the ranch ranging from $4.6 to $15 million. The first appraisal, performed in 1997 by Mark Sonderby, valued the ranch together with other related property at $5.635 million. This appraisal was performed on behalf of both Husband and Wife for tax and loan purposes. The second appraisal occurred in 2000. Theo Hirschfeld, a licensed certified appraiser acting as an expert witness for Husband, valued the ranch at that time at $4.6 million. Finally, Richard Wayne Lewis, a licensed real estate broker with Sotheby's International Realty, valued the ranch at $11 to $15 million and testified at trial as an expert witness for Wife. In its Judgment and Decree of Divorce, the district court accepted the $4.6 million appraisal. Wife contends the district court abused its discretion in doing so because the court failed to discuss or fully explain its determination.

[¶ 5] As stated previously, the trial court has broad discretion in making a distribution of marital property upon divorce. Hall, at ¶¶ 11-12. Further, with respect to the valuation of marital assets, trial courts must exercise discretion and adjudicate marital property dispositions on a case-by-case basis using the best possible valuation method appropriate for that particular case. Neuman v. Neuman, 842 P.2d 575, 582 (Wyo.1992).

[¶ 6] The district court addressed the Canyon Ranch in its Judgment and Decree of Divorce, in applicable part, as follows:

1. The Canyon Ranch consists of about 3,090 deeded acres. The Ranch raises livestock and operates as a bird-hunting resort.
2. Approximately 2,000 acres of the Canyon Ranch are restricted by a conservation easement.
3. Richard Lewis, an agent of the Sotheby International Realty Office in Jackson, Wyoming (not a certified appraiser), offered an opinion that the value of the Canyon Ranch is $11 to $15 million. This estimate relies in part on information taken from the Internet and does not properly consider parcels within the ranch borders owned by others.
4. In December of 1997, a certified appraiser, Mark Sonderby, appraised the Canyon Ranch at $5.635 million. (Ex. CCCC)

5. Effective April 24, 2000, certified appraiser, Theo Hirschfeld, appraised the Canyon Ranch at $4.6 million (Ex. 545). The Court accepts this value.

[¶ 7] While the district court did not set forth an extended discussion of its reasons for accepting Mr. Hirschfeld's appraisal rather than Mr. Lewis', the court did appropriately distinguish the two valuations. First, the district court recognized a distinction between the qualifications of the experts involved, noting that Mr. Hirschfeld was a licensed certified appraiser while Mr. Lewis was not.1 In addition, the district court noted that Mr. Lewis' estimate relied upon information from the internet which did not take into account parcels within the ranch borders owned by others.

[¶ 8] The transcript of the trial also discloses that Mr. Lewis' valuation relied on second-hand, somewhat dated information from previous appraisals, including measurements of the buildings located on the ranch. Mr. Lewis failed to provide the district court with his calculations and many of the documents upon which he relied. When calculating his appraisal, Mr. Lewis used comparable but distant properties located in Colorado and Montana. He additionally relied on other properties with building improvements that were dramatically different than those located on the Canyon Ranch. Many of the comparables he used were of listing prices, as opposed to actual sales prices. Finally, Mr. Lewis failed to adequately take into account the substantial conservation easement that exists on the ranch and made a market evaluation as opposed to an actual appraisal of the property.

[¶ 9] On the other hand, Mr. Hirschfeld's appraisal was conducted using the Uniform Standards of Professional Appraisal Practice. Specifically, Mr. Hirschfeld's valuation was based on an actual sales approach supported by a cost analysis. The substantial and complete bases for Mr. Hirschfeld's valuation of the Canyon Ranch were included within his admitted appraisal report. The appraisal performed by Mr. Hirschfeld was based upon his own personal involvement with the subject property and the comparable properties.

[¶ 10] We cannot conclude, therefore, that the district court abused its discretion when it chose to rely upon Mr. Hirschfield's valuation. Adequate reasons exist to support the district court's determination. Moreover, issues of credibility and the weight to be given to testimony are matters to be resolved by the trier of fact, not an appellate court. Thus, we may not substitute our judgment for that of a trial court with respect to issues concerning credibility. Carlton v. Carlton, 997 P.2d 1028, 1035 (Wyo. 2000) (citing Semler v. Semler, 924 P.2d 422, 424 (Wyo.1996) and Deen v. Deen, 774 P.2d 621, 622 (Wyo.1989)).

Timing of Property Valuation/Applicable Date of Division

[¶ 11] Wife asserts the district court erred when it chose to value the Canyon Ranch and other marital property at the approximate date of the parties' separation. This court has not identified with particularity the time at which marital property must be valued when dividing property in a divorce. Rather, this court has taken the general approach that the appropriate time of valuation is a matter within the broad and sound discretion of the trial court. Similarly, this court has always allowed the trial court open discretion in determining the effective date of the division. See generally Breitenstine v. Breitenstine, 2003 WY 16, 62 P.3d 587 (Wyo.2003)

; McCulloh v. Drake, 2001 WY 56, 24 P.3d 1162 (Wyo.2001); Bailey v. Bailey, 954 P.2d 962 (Wyo.1998); Neuman, at 582; Overcast v. Overcast, 780 P.2d 1371 (Wyo.1989); Sellers v. Sellers, 775 P.2d 1029 (Wyo.1989); Igo v. Igo, 759 P.2d 1253 (Wyo. 1988); David v. David, 724 P.2d 1141 (Wyo. 1986); Grosskopf v. Grosskopf, 677 P.2d 814 (Wyo.1984); Paul v. Paul, 616 P.2d 707 (Wyo.1980); and Parsons v. Parsons, 64 Wyo. 198, 189 P.2d 159 (1948). Further, Wyo. Stat. Ann. § 20-2-114 (Lexis 1999) demands such an approach.

[¶ 12] Although states vary in their approaches regarding when marital property should be valued or effectively split, many states, like Wyoming, have adopted a discretionary analysis. See 24 Am.Jur.2d Divorce and Separation § 575 (1998) and Lee R. Russ, Annotation, Proper date for valuation of property being distributed pursuant to divorce, 34 A.L.R.4th 63 (1984). Further, we agree with the Kansas Supreme Court's reasoning when it addressed the appropriateness of a discretionary analysis in considering the timing of the valuation of marital property:

A review of case law from other jurisdictions on this issue illustrates the wide divergence in opinion which exists regarding the time to value marital assets pursuant to a divorce. The various time periods include: date of separation, filing of divorce, after discovery, date of trial, date of divorce decree, date of distribution, and at the discretion of the trial court. Accordingly, there are numerous cases adopting widely divergent views of the appropriate time to value marital assets pursuant to a divorce.
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