Black v. De Black

1 P.3d 1244

Richard B. BLACK, Appellant (Defendant), v. Marieluise Jungbehrens De BLACK, Appellee (Plaintiff).

Richard B. Black, Appellant (Defendant), v. Marieluise Jungbehrens De Black, Appellee (Plaintiff).

Nos. 98-164, 98-228.

Supreme Court of Wyoming.

March 31, 2000.

Representing Appellant: William P. Schwartz of Ranck, Schwartz & Day, LLC, Jackson, Wyoming; and George B. Yankwitt of Robinson, Silverman, Pearce, Aronsohn & Berman, LLP, New York, New York.

Representing Appellee: Rhonda Sigrist Woodard of Burke, Woodard & O'Donnell, P.C., Cheyenne, Wyoming; Marilyn Kite of Holland & Hart, Jackson, Wyoming; and William A. Johnson of Linn & Neville, P.C., Oklahoma City, Oklahoma.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

THOMAS, Justice.

The major issue in Case No. 98-164 is whether the district court erred in setting aside its order, obtained upon the motion of Richard B. Black (Black), vacating a decree of divorce because Marieluise Jungbehrens De Black n/k/a Marieluise Hessel (Hessel) was unable to satisfy the jurisdictional requirements of Wyo. Stat. Ann. § 20-2-107 (Lexis 1999). In Case No. 98-228, the dispute presented concerns the authority of the district court to award attorney fees and costs to Hessel. We are satisfied that this case can be affirmed on the merits, without doing any violence to the jurisdictional requirements of the statute, by following the rule articulated in McDougall v. McDougall, 961 P.2d 382, 384-85 (Wyo.1998). The award of attorney fees and costs to Hessel is justified by the terms of a Separation Agreement that the parties entered into prior to the filing for divorce as well as Wyo. Stat. Ann. § 20-2-111 (Lexis 1999). The Order Concerning Residency, the Order Concerning Motion for Summary Judgment, and the Order Awarding Attorneys Fees and Costs all are affirmed in every respect.

This statement of the issues is found in the Brief of Appellant, filed on behalf of Black, in Case No. 98-164:

A. Whether, in light of W.S. § 20-2-107's jurisdictional requirement that a plaintiff in a divorce action establish residency by proving actual bodily presence in Wyoming for the 60 days immediately preceding the filing of a divorce complaint, combined with the simultaneous intention to remain in the state permanently, the District Court erred as a matter of law in (i) rescinding its prior order, in which it vacated the divorce decree for lack of jurisdiction because Appellee did not actually reside in Wyoming for the 60 days immediately preceding the filing of her divorce complaint; (ii) disregarding Appellee's lack of actual bodily presence in Wyoming for the statutory period and her failure to establish domicile before the statutory period began; and (iii) basing its determination that Appellee was a resident solely on her stated intention to become a Wyoming resident in the future?

B. Whether the District C[o]urt improperly granted Appellee's Motion for Summary Judgment in the face of disputed issues of material fact regarding (i) whether Appellant's motion under W.R.C.P. 60(b)(6), which provides for relief from a judgment unfairly entered under extraordinary circumstances when a motion is brought within a reasonable time, was time-barred; (ii) whether Appellant was barred from relief by the principles of Carlson v. Carlson; and (iii) whether Appellant was barred from relief by estoppel by benefit?

C. Whether the District Court improperly awarded Appellee her attorneys' fees and costs without statutory or contractual basis?

In the Brief of Appellee, filed on behalf of Hessel, in Case No. 98-164, the issues are stated in this way:

I. Was Marieluise Hessel ("Hessel") a Wyoming resident for sixty (60) days immediately preceding the filing of the divorce complaint?

II. Would an erroneous determination regarding Hessel's residency render the Divorce Decree void pursuant to Rule 60(b)(4), W.R.C.P. when the district court had the power to make the determination regarding residency, Richard Black ("Black") failed to contest the issue and Black failed to appeal?

III. Is Black's claim under Rule 60(b), W.R.C.P. time-barred?

IV. Is W.S. § 1-16-401(a)(iii) or (iv) applicable to Black's claim?

V. Is Black barred from relief under Rule 60(b), W.R.C.P. by the principles of Carlson v. Carlson, 836 P.2d 297 (Wyo. 1992)?

VI. Did Black's acceptance of benefits retained from the Divorce Decree preclude a challenge to the validity of the Decree?

VII. Is the district court's award of attorney's fees to Hessel authorized by statute and/or by the terms of the Separation Agreement incorporated into the Divorce Decree?

This statement of the issues is found in the Brief of the Appellant (Regarding Attorneys' Fees and Costs), filed on behalf of Black in Case No. 98-228:

A. Does the district court's award of attorneys' fees to Hessel violate the American rule on attorneys' fees?

B. In sua sponte awarding attorneys fees to Hessel, did the district court violate Black's right to due process of law?

C. Did the district court apply the proper legal standards in calculating the reasonableness of Hessel's attorneys' fees?

D. Did Hessel submit sufficient evidence demonstrating the reasonableness of her attorneys' fees?

E. Are the costs awarded to Hessel by the district court authorized under law?

F. Did the district court abuse its discretion in awarding costs without addressing the reasonableness of the costs awarded?

G. Did Hessel submit sufficient evidence demonstrating the reasonableness of her costs?

These arguments are found in the Brief of Appellee in Docket No. 98-228, filed on behalf of Hessel:

I. The district court was authorized to award attorney's fees and costs to Hessel.

II. Black was afforded ample due process in the determination of attorney's fees.

III. The district court's award of attorney's fees is reasonable.

IV. The costs awarded to Hessel are authorized and reasonable.

Black and Hessel were married in Mexico City, Mexico on January 18, 1980. They separated in 1990, and executed a Separation Agreement that is dated January 15, 1992. The Separation Agreement was modified by the parties on December 15, 1992. On June 16, 1993, Hessel filed a Complaint for Divorce in the District Court for the Ninth Judicial District Within and For Teton County, Wyoming. The district court entered the Decree of Divorce on August 13, 1993.

The issues before us in Case No. 98-164 arise out of an attempt by Black to overturn the Decree of Divorce and to obtain for himself certain property awarded to Hessel by the district court. Black proceeded by a motion for relief pursuant to W.R.C.P. 60(b), which he filed on June 19, 1995 and in which he alleged the district court lacked subject matter jurisdiction; Black was not represented by counsel during the negotiation of the Separation Agreement; and he agreed to the Separation Agreement because of Hessel's threats to publicly disclose sensitive personal information, in essence Black asserted a claim of duress. The parties then entered into extensive discovery proceedings, and on March 15, 1996, Black amended his motion for relief, alleging that Hessel had not been a resident of Wyoming for sixty days prior to filing the Complaint for Divorce. Black contended that the Decree of Divorce was void. By April 8, 1996, both parties had filed motions for summary judgment with respect to Black's amended motion for relief. Black argued that the district court was without jurisdiction and that its actions were void, while Hessel contended she was indeed a resident of Wyoming, but even if she was not, Black was barred from relief because of the statute of limitations and estoppel by benefit. On September 26, 1996, the district court granted Black's amended motion for relief, which had the effect of vacating the Decree of Divorce. Hessel appealed from that order.

Black moved for dismissal of Hessel's appeal, asserting that the summary judgment order was not a final appealable order. This Court entered a Minute Order Remanding the Appeal for Determination of Residency, the effect of which was to remand the case to determine Hessel's residency and other matters. After a year of extensive discovery and a three-day evidentiary hearing on Hessel's residency, the district court determined that Hessel had been a resident of Teton County for sixty days immediately preceding the filing of her Complaint for Divorce. After the Order Concerning Residency was entered, Hessel filed a Motion for Summary Judgment on the remaining claims in Black's amended motion for relief, and the district court granted her motion; denied Black's amended motion for relief; and awarded Hessel attorney fees and costs incurred in the defense of Black's motion. Hessel's motion ultimately was granted on February 18, 1998, and at that time, the district court denied Black's Amended Motion to Set Aside the Default Divorce Decree, awarding to Hessel the attorney's fees incurred in defending Black's motion. Black appeals two orders of the district court: the first is the Order Concerning Residency entered on September 19, 1997, and the second is the Order Concerning Motion for Summary Judgment entered on February 18, 1998.

The facts relating to Hessel's residence are complex. Hessel was a native of Germany where she was born, but she became a citizen of Mexico on November 11, 1969. Prior to her marriage to Black and until February 11, 1993, Hessel's status in the United States remained that of a "non-immigrant" alien of Mexico. On January 21, 1993, Hessel filed her Application for Permanent Residence with the United States Immigration and Naturalization Service. That application was approved on February 11, 1993 and her Mexican citizenship was consistent with her non-immigrant alien status prior to that date. Prior to December 31, 1992, Hessel's status with respect to her United States federal income tax was that of a "non-resident alien," and she did not file or pay United States taxes...