Zaloudek v. Zaloudek

• Decision Date: 12 November 2009
• Docket Number: No. S-09-0016.,S-09-0016.
• Citation: 220 P.3d 498,2009 WY 140
• Parties: Kenneth J. ZALOUDEK, Jr., Appellant (Defendant), v. Becky ZALOUDEK, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

220 P.3d 498

2009 WY 140

Kenneth J. ZALOUDEK, Jr., Appellant (Defendant), v. Becky ZALOUDEK, Appellee (Plaintiff).

No. S-09-0016.

Supreme Court of Wyoming.

November 12, 2009.

Representing Appellant: William L. Combs, Combs Law Office, Evanston, Wyoming.

Representing Appellee: Richard J. Mulligan, Mulligan Law Office, Jackson, Wyoming; Heather Noble, Jackson, Wyoming. Argument by Ms. Noble.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] In this appeal, Kenneth J. Zaloudek challenges the district court's property division. We will affirm.

ISSUES

[¶ 2] Mr. Zaloudek states his three appeal issues as follows:

1. Did the trial court afford husband fundamental due process in its rulings surrounding the Order on Plaintiff's Motion Regarding Reimbursement of Hay?

2. Is a decree of divorce that simply adopts one party's proposal without offering it for approval to the other party entitled to this Court's deference when it contains unjust and inequitable divisions of property based on defective factual findings?

3. Does the decree of divorce unfairly divide assets and debts without adequate analysis of property division factors and by improperly reaching non-marital assets?

Ms. Zaloudek restates the issue more simply: Did the trial court abuse its discretion in its divorce decree ordering an equitable division of the property?

FACTS

[¶ 3] Ms. Zaloudek began working as an airline flight attendant in 1972. Mr. Zaloudek began working as a pilot for the same airline in 1973. They met in 1986 when both were working on the same flight. They began living together later that year in a house owned by Ms. Zaloudek in Georgia. They were married in August of 1990. A short time later, Ms. Zaloudek sold the Georgia property, and the couple built a house in Park City, Utah. They sold the Utah property in 1996, and moved to a home near Evanston, Wyoming. The parties have no children.

[¶ 4] Ms. Zaloudek filed for divorce in February of 2007. She was still working for the airline, but Mr. Zaloudek had taken early retirement in 2003. Both had accumulated substantial retirement assets, but his were larger because his earnings as a pilot had exceeded those of Ms. Zaloudek as a flight attendant. Near the date of the divorce trial, Mr. Zaloudek's retirement accounts were valued at approximately $1,700,000.00, and he also received pension payments of over $2,000.00 per month. Ms. Zaloudek had a retirement account worth approximately $350,000.00, plus an IRA account worth a little more than $40,000.00. Ms. Zaloudek testified that she intended to keep working and would earn an annual salary of $40,000.00. She estimated that if she retired as of the date of the trial, she would be eligible for a monthly pension benefit of approximately $1,200.00 per month. The couple's net equity in their Evanston property was approximately $530,000.00. The parties owned personal property estimated by one of them to be worth approximately $120,000.00.

[¶ 5] The couple raised horses, and at one time kept as many as 27 horses on their Evanston property. At the time the divorce was filed, they owned 12 or 13 horses. After filing for divorce and moving to a condominium in Evanston, Ms. Zaloudek took two of the horses and kept them at a boarding facility. In the autumn of 2007, while the divorce was pending, Ms. Zaloudek filed a motion with the district court seeking an order allowing her to remove hay from the Evanston property to feed her horses at the boarding facility. Mr. Zaloudek opposed that motion. The district court held an unreported and unrecorded hearing on the matter. The court did not grant Ms. Zaloudek permission to remove hay from the property but, instead, ordered Mr. Zaloudek to pay Ms. Zaloudek for hay to be purchased from another source. Mr. Zaloudek was ordered to pay her $1,800.00 for hay, an additional $500.00 to reimburse her for miscellaneous horse boarding costs, and $500.00 in attorney's fees, for a total of $2,800.00. The district court indicated that it would "consider the payment" for the hay "in determining the final equitable distribution of property between the parties at the time of trial."

[¶ 6] At trial, the parties largely agreed to a division of their personal property. The parties also agreed that the Evanston property should be sold, with the net proceeds divided equally between them. They did not agree on how to divide the retirement assets, and after trial, in accordance with the district court's order, the parties submitted proposed divorce decrees setting forth their separate proposals for dividing the retirement assets. The proposals were detailed and rather complicated, but can be fairly characterized in simple terms. Ms. Zaloudek proposed an equal split of the retirement assets. To achieve an equal division of the property, Mr. Zaloudek would be required to pay Ms. Zaloudek an additional $782,659.17. In contrast, Mr. Zaloudek proposed that he should receive a substantially greater share, based in large part on the fact that each party had accumulated retirement assets before the marriage. He asserted that the pre-marital assets should not be divided, but that the district court should divide only those portions of the retirement accounts and benefits that had accumulated during the marriage. To achieve his proposed property division, Mr. Zaloudek would pay Ms. Zaloudek an additional $247,114.19.

[¶ 7] The district court rejected Mr. Zaloudek's proposed division of the retirement assets. It accepted Ms. Zaloudek's proposal, and adopted her proposed divorce decree nearly verbatim. Mr. Zaloudek filed a timely appeal challenging the district court's decisions.

STANDARD OF REVIEW

[¶ 8] A district court's division of property in a divorce is entitled to substantial deference.

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. We view the evidence in the light most favorable to the prevailing party, affording that party every reasonable inference which can be drawn from the record. Id.

Pittman v. Pittman, 999 P.2d 638, 640 (Wyo. 2000).

[¶ 9] When dividing marital property, the district court considers the factors set forth in Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2009):

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. The court may decree to either party reasonable alimony out of the estate of the other having regard for the other's ability to pay and may order so much of the other's real estate or the rents and profits thereof as is necessary be assigned and set out to either party for life, or may decree a specific sum be paid by either party.

The district court has discretion to determine what weight should be given each of these individual factors, and to divide the property as appropriate to the individual circumstances of each case. Carlton v. Carlton, 997 P.2d 1028, 1032 (Wyo.2000).

The justness and fairness of a marital property division cannot be gauged with a simple comparison of the amount of property awarded to each party. Rather, the disposition should be performed with regard to the respective merits of the parties, 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.

Carter-Wallop v. Wallop, 2004 WY 46, ¶ 36, 88 P.3d 1022, 1032 (Wyo.2004). The goal in dividing marital property upon divorce is to reach an equitable result.

DISCUSSION

[¶ 10] While the divorce was pending, Ms. Zaloudek sought permission from the district court to take some of the hay stored at the Evanston property to feed the two horses she was keeping. Mr. Zaloudek objected, arguing that he was already bearing an unjust burden of expenses, and that Ms. Zaloudek had persistently violated the court's orders by coming onto the Evanston property and taking items of personal property. After a hearing held by telephone, the district court denied Ms. Zaloudek's request for permission to take the hay but, instead, ordered Mr. Zaloudek to pay for hay to be purchased from another source. Mr. Zaloudek filed a motion asking the district court to reconsider its ruling, claiming that the payment of money was relief that had not been sought by Ms. Zaloudek, and that the parties had presented no testimony or other evidence during the hearing to support the order. The district court apparently chose to deny Mr. Zaloudek's motion to reconsider and, instead, issued the written order that had been prepared and submitted by Ms. Zaloudek. On appeal, Mr. Zaloudek claims that the district court's decision was arbitrary and capricious, unsupported by the evidence, and contrary to law.

[¶ 11] Mr. Zaloudek initially contends that the district court erred in ordering him to pay Ms. Zaloudek because she did not request that relief. The record does not support that assertion. In the motion, Ms. Zaloudek sought alternative forms of relief. First, she asked for permission to remove hay from the property. Alternatively, she requested payment for the costs of boarding the horses. The relief granted by the district court falls within this alternative request. Mr. Zaloudek had notice of this claim for relief and we find no error in the district court's consideration of this issue.

[¶ 12] Because the hearing on this motion...