from the District Court of Natrona County The Honorable
Catherine E. Wilking, Judge
Representing Appellant: Richard "Zak" Szekely,
Representing Appellee: Kathleen B. Dixon of Dixon &
Dixon, LLP, Casper, Wyoming.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Amanda Ann Peak (Mother) and Casey Charles Peak (Father) were
married in 2005. Mother filed for divorce on June 2, 2015.
The clerk of court entered default after Father failed to
timely file an answer to Mother's complaint. Father filed
a motion to set aside the entry of default. The district
court held a hearing on the default, which Father did not
attend. After the hearing, the district court entered a
default divorce decree. Father appealed, and we stayed the
appeal pending a determination of whether father received
notice of the hearing on default. The district court found
that Father received notice and denied Father's motion to
set aside entry of default and default divorce decree. That
decision was not appealed. We affirm.
Father raises a host of issues which fall into two general
categories: the procedure utilized by the district court, and
the substance of the decree of divorce. Accordingly, we
rephrase the issues as follows:
the district court violate Father's due process rights
when it held the default hearing in Father's absence?
the district court abuse its discretion when it divided the
parties' property and debts and ordered child support?
Mother and Father were married in 2005. They had three
children, born in 1998, 2006, and 2010. Mother filed for
divorce on June 2, 2015, and Father was served with the
complaint at his place of business the following day, June 3,
2015. Father's answer or response was due twenty days
later, June 23, 2015. W.R.C.P. 12(a). Father did not file an
answer or otherwise respond by that date. Mother sought entry
of default, which was entered on June 24, 2015. The following
day, Mother filed a motion for the entry of a default divorce
decree and requested a hearing on her motion. On June 29,
2015, the district court scheduled a hearing on Mother's
motion for entry of the default divorce decree for September
17, 2015, and Father received notice of that hearing. On July
15, 2015, counsel for Father filed an answer and
counterclaim, along with a motion to set aside the entry of
default. Mother filed an objection to Father's motion to
set aside the entry of default on August 4, 2015.
The district court held the scheduled default hearing on
September 17, 2015. Neither Father nor his counsel attended.
At the hearing, the court allowed Mother to present evidence,
and issued an oral ruling. It then entered a written divorce
decree on September 29, 2015.
Mother was awarded primary physical and legal custody of the
three children. The decree provides that the oldest child may
visit Father at his discretion. Father is allowed visitation
of the younger two children, subject to certain requirements.
Father was also ordered to pay child support in the amount of
$1, 320.91 per month until all of the children reach the age
of eighteen and no longer attend high school. Father was
required to pay back child support in the amount of $2, 400.
In addition, Mother was awarded the marital home; Father was
required to pay mortgage payments on the home for one year
and reimburse Mother for two months' mortgage payments.
Father was awarded the interest in his business, including
all of its assets and liabilities, along with numerous
vehicles, an RV camper, four-wheelers, and other property.
On October 9, 2015, Father filed a motion to set aside the
entry of default and the default divorce decree. On October
22, 2015, Father filed a request for a hearing on his motion,
and on October 26, 2015, Father filed an affidavit in support
of his motion, asserting that he did not receive service of
the setting of the default hearing. Mother filed an objection
to Father's motion to set aside the entry of default and
the default divorce decree on October 28, 2015. The district
court had not ruled on Father's motion at the time Father
timely filed his notice of appeal to this Court on October
28, 2015. This Court stayed the appeal pending the district
court's ruling on Father's motion to set aside the
entry of default and default judgment. The district court
entered its Order Denying Defendant's Motion to Set Aside
Entry of Default and Default Decree of Divorce on August 29,
2016. Father did not appeal this ruling. We lifted the
stay in this matter on October 3, 2016.
Did the district court violate Father's due process
rights when it held the default hearing in
Father claims that the district court violated his right to
due process when it held the hearing on the default without
giving him proper notice of the hearing. "Whether a
trial court violated a litigant's right to due process
presents a question of law that we review de
novo." Rosty v. Skaj, 2012 WY 28, ¶
16, 272 P.3d 947, 953 (Wyo. 2012).
The party claiming an infringement of his right to due
process has the burden of demonstrating both that he has a
protected interest and that such interest has been affected
in an impermissible way. The question is whether there has
been a denial of fundamental fairness.
Brush v. Davis, 2013 WY 161, ¶ 16, 315 P.3d
648, 653 (Wyo. 2013) (citations omitted). "Due process
contemplates the opportunity to be heard at a meaningful time
in a meaningful manner." Jones v. Jones, 903
P.2d 545, 548 (Wyo. 1995) (citation omitted).
The procedure for entry of default and default judgment
provides the context for Father's argument. Entry of
default is a "clerical act which may be performed by the
clerk of court, and it does not constitute a judgment."
Spitzer v. Spitzer, 777 P.2d 587, 592 (Wyo. 1989).
Once default has been entered, the party in default is
precluded from making any defense or assertion with respect
to liability or an asserted claim. Id.; Clay v.
Mountain Valley Mineral Ltd. P'ship, 2015 WY 84,
¶ 19, 351 P.3d 961, 967 (Wyo. 2015). "Although the
entry of default generally establishes the fact of liability
according to the complaint, it does not establish either the
amount or degree of relief." McGarvin-Moberly
Constr. Co. v. Welden, 897 P.2d 1310, 1314 (Wyo. 1995)
(quoting Vanasse v. Ramsay, 847 P.2d 993, 997 (Wyo.
1993)). Entry of default "does not relieve the
non-defaulting party of its obligation to produce an
evidentiary basis for the desired relief, nor does it relieve
the district court of its obligation to base its findings of
fact upon such evidence." Noonan v. Noonan,
2005 WY 145, ¶ 7, 122 P.3d 964, 966 (Wyo. 2005).
A default judgment, by contrast, establishes the fact of
liability of the defaulting party and defines the amount of
liability or the nature of the relief that will be granted to
the non-defaulting party. McGarvin-Moberly, 897 P.2d
at 1314; Spitzer, 777 P.2d at 592. "Where the
damages or relief claimed are unliquidated or not specified
with certainty in the complaint, further proceedings are
indicated." Spitzer, 777 P.2d at 592-93;
see also W.R.C.P. 55(b)(2). Thus, in a default
divorce proceeding such as this, the district court must
obtain an evidentiary basis for its findings regarding
property distribution, child custody and visitation, and
child support. Noonan, 2005 WY 145, ¶ 12, 122
P.3d at 967; Spitzer, 777 P.2d at 593; Wyo. Stat.
Ann. § 20-2-114 (LexisNexis 2015) (requiring just and
equitable property division); Wyo. Stat. Ann. § 20-2-201
(LexisNexis 2015) (establishing factors to be considered by
court awarding child custody and visitation); and Wyo. Stat.
Ann. §§ 20-2-301 to 20-2-316 (LexisNexis 2015)
(setting forth parameters for calculation of child support).
This will require a hearing in most instances. See
Spitzer, 777 P.2d at 594. Here, the district court held
that hearing on September 17, 2015, and Father was absent.
The district court determined that Father received notice of
the default divorce hearing. Because he had notice, his
absence from the hearing does not mean that his due process
rights have been violated. In Jones, we addressed a
similar situation. There, the appellant argued that his due
process rights were violated when the trial court refused to
continue his divorce trial and he subsequently failed to
appear at the trial. Id., 903 P.2d at 547-48. We
held that "[d]ue process merely affords the
opportunity to be heard and, thus, a party can
waive his due process right to be heard by voluntarily
absenting himself from the proceedings."
Id. at 548 (emphasis in original; citations
omitted). We concluded that the appellant had waived his
right to be heard by voluntarily absenting himself from the
hearing. Id. Here, because Father received notice of
the hearing, he received all the process he was due. He was
presented with a meaningful opportunity to be heard; his
failure to appear amounts to a waiver of the right to be
Father also claims that the district court abused its
discretion by entering the default divorce decree when he
failed to appear at the hearing on the default instead of
imposing "other sanctions." Father fails to provide
any cogent argument or citations to relevant rules or caselaw
supporting his position. We consistently have refused to
consider arguments not supported by cogent argument and
citation to legal authority. In re General Adjudication
of All Rights to Use Water in Big Horn River System,
2015 WY 104, ¶ 24, 355 P.3d 1222, 1228 (Wyo. 2015);
Armstrong v. Wyo. Dep't of Envtl. Quality, 2013
WY 53, ¶ 9, 300 P.3d 850, 851 (Wyo. 2013); Forbis v.
Forbis, 2009 WY 41, ¶ 10, 203 P.3d 421, 424 (Wyo.
2009). We note that the Wyoming Rules of Civil Procedure do
not enumerate alternative sanctions for a party's failure
to appear at a default hearing. Because Father provides us
with no authority allowing for or requiring "other
sanctions" when a party fails to appear at a default
hearing, his argument is unavailing.
Did the district court abuse its discretion when it divided
the parties' property and debts and ordered child
Father makes a number of arguments regarding the district
court's default divorce decree, ...