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Wunsch v. Pickering

November 10, 2008

JAMES P. WUNSCH, APPELLANT (PLAINTIFF),
v.
KELLY M. PICKERING, F/K/A KELLY M. WUNSCH, APPELLEE (DEFENDANT).



Appeal from the District Court of Teton County. The Honorable Nancy J. Guthrie, Judge.

The opinion of the court was delivered by: Golden, Justice.

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

[¶1] In their divorce proceedings, James and Kelly Wunsch,*fn1 joint owners and operators of a financial services business, executed a property settlement agreement (agreement), later fully incorporated into their divorce decree, that included a provision that they would share equally fees earned on joint client accounts, and that if Mr. Wunsch replaced any such account, then they would share equally fees on the replaced account "until such time as KELLY has received in fees an amount equal to two times the annual earnings on the amount replaced, based on the fee charged before the replacement." (Emphasis added). Two years later, they disagreed whether the highlighted language meant two times the or her annual earnings. After a hearing, the district court ruled the unambiguous language meant two times the annual earnings. Mr. Wunsch appeals. We affirm.

ISSUES

[¶2] Mr. Wunsch presents three issues. First, he asserts the district court erroneously denied his motion for a continuance of the hearing on the meaning of the agreement because the parties had not mediated the issue as required by the agreement. Second, he asserts the district court erroneously ruled the agreement was unambiguous and the parties intended Mrs. Wunsch to receive two times the annual earnings on the amounts replaced. Third, he asserts the issue of the agreement's meaning should be remanded for a new hearing if this Court determines that it is ambiguous.

[¶3] Mrs. Wunsch restates the issues. First, she asks whether the district court abused its discretion when it denied Mr. Wunsch's motion for a continuance. Second, she asks whether the district court erred in ruling that the agreement is unambiguous. Third, she asks, if this Court determines that the district court's ruling was erroneous as a matter of law, whether the record supports findings in her favor or whether this Court should remand for findings from the record without a rehearing.

GENERAL BACKGROUND FACTS

[¶4] At the time of their divorce after eighteen years of marriage, the parties jointly owned personal, real, and business property. The business property was Wunsch Financial Services, Inc. (Wunsch Financial), which provided life, health, and disability insurance products and investment services such as fixed annuities, variable annuities, mutual funds, stocks, and bonds. A substantial portion of Wunsch Financial's business income came from management fees from Strategic Asset Management accounts (SAM accounts) through Linsco Private Ledger (LPL), a broker dealer. LPL permitted Wunsch Financial to conduct a broad range of investment services for its clients. A SAM account allowed a client to place money in many different types of investments, unlike a mutual fund. Although the up-front management fee to Wunsch Financial was less with a SAM account, management of such an account over time provided a long term income stream to Wunsch Financial. Wunsch Financial received its management fees through three accounts: a joint representative number (LPL rep number 7*7*), Mr. Wunsch's individual representative number (LPL rep number J*K*), and Mrs. Wunsch's individual representative number (LPL rep number J*J*).

[¶5] At the time of their divorce, the parties engaged in extended negotiations to achieve a settlement of the various issues that typically arise in a divorce action. The parties memorialized their resolution of those issues in their child custody and property settlement agreement which the district court later approved and incorporated by reference into a divorce decree. The agreement comprises thirty pages, including exhibits, with thirty-one sections. Sections 1 through 18 treat non-property and non-business matters which are not pertinent to this appeal. Section 19 treats the division of the parties' personal property, identifying which party receives which item of personal property. Section 20 treats the parties' real property, providing for the sale and equal division of the net sale proceeds. Section 21 treats the parties' credit card debt and an LPL SAM account funded with assets provided by Mr. Wunsch's father, providing that each party is responsible for his or her own credit card debt, and the parties shall equally repay the funds provided by Mr. Wunsch's father. Section 24 through 31 treat other matters which are not pertinent to this appeal. Section 22 treats the division of the Wunsch Financial business and business assets, including joint client accounts and LPL SAM accounts. In entirety, with emphasis added, it reads:

22. DIVISION OF THE BUSINESS AND BUSINESS ASSETS. The parties currently co-own a business known as Wunsch Financial Services, Inc., also known as Wunsch Financial Services in Wilson, Wyoming. Each party shall pay one-half of the lease obligations on the former triple net lease. Each party is equally responsible for paying employee expenses incurred up to and including June 15, 2004. The parties shall be equally responsible for business related expenses, taxes and penalties, as well as business debts to third party creditors through June 15, 2004.

As of June 15, 2004, the business will be separated into two entities. JIM will retain the name Wunsch Financial Services, Inc. and be entitled to the Marketing Entity. KELLY will be entitled to the Asset Management and Administration Entity, which will be immediately renamed by her. KELLY shall transfer her stock to JIM and take any necessary action to conform the corporate records with this agreement.

The parties agree that they shall cooperate in this division. The funds in the corporate account shall be divided equally between the parties as of June 15, 2004.

A. JOINT CLIENT ACCOUNTS AND SAM ACCOUNTS: The parties will share equally any fees earned on joint client accounts paid through LPL rep number 7[*]7[*] which shall continue to be held by both parties or any mutually agreeable replacement LPL rep number. If JIM replaces any of the above joint client accounts, JIM and KELLY will share equally the fees on the replaced account and fee sharing shall continue to be paid through LPL rep number 7[*]7[*], or any mutually agreeable replacement LPL rep number until such time as KELLY has received in fees an amount equal to two times the annual earnings on the amount replaced, based on the fee charged before the replacement. At such time, KELLY shall no longer receive any fees on the replaced account. KELLY will not provide any services to these replaced accounts after the date of the replacement.

If the replacement product is direct business, JIM AND KELLY will share commissions using their individual LPL rep numbers after confirmation by the direct business companies involved and LPL that commissions can be received directly through these rep numbers. The commission split will be based upon the formula used for replacement of joint fee based client accounts as set forth above.

The parties acknowledge that all SAM accounts as of June 15, 2004 are joint.

As long as the parties have joint client accounts, the parties acknowledge that they must both rely on the other to perform duties and have responsibilities for the performance of those duties to the other. The duties are as follows:

KELLY, through the Asset Management entity will provide ongoing investment research, monitor the joint client accounts investment portfolios, periodically rebalance the portfolios on a regular basis, if needed, and make the necessary trades on each joint client account. KELLY and her employee may continue to have a presence on the LPL/Wunsch Financial Website. No marketing will be done by KELLY or her employee on these joint client account owners and if the account owner mentions the need for a product or service, JIM will be immediately notified.

JIM, through the marketing entity will continue to offer value added services that aid in joint client retention, continue to make the necessary client contacts by phone, by the LPL/Wunsch Financial Services web site or by e-mail and to hold periodic interviews as needed or requested by the joint client accounts. Both parties will make themselves readily accessible to the other party and promptly and accurately process any paperwork needed in the functioning of the business. Both parties will be pleasant in all conversations and communications with the other party.

B. LPL ACCOUNTS: After June 15, 2004, KELLY shall have all rights to the income paid through LPL representative account number J[*]J[*] and JIM shall have all rights to the income paid through LPL representative account number J[*]K[*]. JIM'S income will be paid to his individual checking account and KELLY'S income will be paid to her individual checking account. Any applications processed and commissions or fees earned after June 15, 2004 will be made through their individual LPL rep numbers and be paid to them as individuals.

C. NEW CLIENTS: If JIM uses KELLY'S services for any new clients acquired after June 15, 2004, it will be by a separate written agreement negotiated ...


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