MARK A. SAUNDERS, Appellant (Plaintiff),
SIBYL H. SAUNDERS, Appellee (Defendant).
from the District Court of Fremont County The Honorable
Norman E. Young, Judge
Representing Appellant: Melinda S. McCorkle of Kline,
McCorkle & Pilger, LLP, Cheyenne, Wyoming.
Representing Appellee: Devon P. O'Connell, Dustin J.
Richards and Albert K. Walsh of Pence and MacMillan LLC,
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Appellant Mark A. Saunders appeals from the district
court's order dismissing his divorce action against
Appellee Sybil H. Saunders on the grounds of improper venue
and/or forum non conveniens. The district court
erred by dismissing Mr. Saunders' action for improper
venue, and it did not apply the proper test when it dismissed
for forum non conveniens. Consequently, we reverse
and remand for further proceedings.
The issues on appeal are:
1. Whether the district court erred by dismissing Mr.
Saunders' divorce complaint for improper venue under
2. Whether the district court erred by dismissing Mr.
Saunders' divorce complaint under the doctrine of
forum non conveniens.
The Saunders married in North Carolina in 1989. On February
9, 2018, Mr. Saunders filed a complaint for divorce in the
district court in Fremont County, Wyoming. Mr. Saunders
stated he lived in Fremont County and had resided in the
State of Wyoming for more than sixty days immediately
preceding his filing of the complaint. He also stated two
children were born as issue of the marriage, but they were
adults. Mr. Saunders requested the district court grant him a
divorce from Mrs. Saunders and equitably divide their marital
property. Mrs. Saunders was served with the complaint and
summons in North Carolina on February 20, 2018.
On February 21, 2018, Mrs. Saunders filed a divorce complaint
in North Carolina. That document is not part of the record on
appeal, but her amended complaint, which she filed on April
9, 2018, is included in the record. Mrs. Saunders then filed
a motion to dismiss the Wyoming action pursuant to W.R.C.P.
12(b)(3),  claiming Wyoming was an improper venue for
the parties' divorce and/or forum non
Mrs. Saunders filed a personal affidavit in support of her
motion to dismiss. She declared the parties had lived
together in North Carolina and had never resided in Wyoming
as a married couple. Mrs. Saunders also stated Mr. Saunders
has interests in approximately forty-four North Carolina
businesses. According to her, he had engaged in extensive
business dealings and real estate ventures in southeastern
North Carolina for over thirty years, including a business
named "Mark Saunders Luxury Homes," which has
"a significant number of employees[.]" Mrs.
Saunders stated Mr. Saunders and/or his companies were
involved in thousands of real estate transactions over an
unidentified period of time.
As for liabilities, Mrs. Saunders stated Mr. Saunders'
businesses were involved in "a great number of
lawsuits" and there was an outstanding lien of $74, 000,
000, although it is unclear who the lien had been filed
against. She also stated the parties had a federal tax lien
of $3, 000, 000 filed against them in North Carolina and
Wyoming. Mrs. Saunders claimed the "identification,
classification, and evaluation of all marital assets,
together with the number of competent witnesses who may
testify in the . . . action are primarily from the State of
North Carolina." She asserted, given the complex nature
of the marital properties and debts, North Carolina would be
the "most convenient forum to litigate" the issues
associated with their divorce.
In his verified response, Mr. Saunders claimed the district
court in Fremont County had jurisdiction over the subject
matter and parties. He recognized Mrs. Saunders had filed a
complaint in North Carolina but stated he had not been served
with process in that suit. Mr. Saunders also admitted he
continued to have significant business and personal
connections in North Carolina. He conceded there were pending
lawsuits against him and his business entities and a federal
tax lien had been filed in North Carolina and Wyoming against
the parties. He did not specifically deny the $74, 000, 000
lien but stated the documents from the Register of Deeds,
which were apparently on the thumb drive, see supra
n.2, speak for themselves.
Mr. Saunders claimed to have moved permanently to Wyoming and
to have substantial real property and business interests in
this State. He averred he had possessed and operated a ranch
in Wyoming for over thirteen years and had interests "in
at least 10 Wyoming-based business entities." Mr.
Saunders asserted his choice of Wyoming as the forum to
litigate the divorce was entitled to deference.
The North Carolina court stayed Mrs. Saunders' divorce
action "until the determination of venue and any other
possible jurisdictional matters are resolved by the Wyoming
Courts." After a hearing, the district court in this
case issued an order granting Mrs. Saunders'
"Motion to Dismiss for Improper Venue." Mr.
We generally review a district court's rulings regarding
venue and forum non conveniens for abuse of
discretion. Bourke v. Grey Wolf Drilling Co., LP,
2013 WY 93, ¶ 14, 305 P.3d 1164, 1167 (Wyo. 2013)
(venue); Burnham v. Coffinberry, 2003 WY 109,
¶¶ 5, 8, 76 P.3d 296, 298-99 (Wyo. 2003) (venue and
forum non conveniens); West Texas Utils. Co. v.
Exxon Coal USA, Inc., 807 P.2d 932, 935 (Wyo. 1991)
(citing Booth v. Magee Carpet Co., 548 P.2d 1252
(Wyo. 1976)) (forum non conveniens).
Judicial discretion is a composite of many things, among
which are conclusions drawn from objective criteria; it means
a sound judgment exercised with regard to what is right under
the circumstances and without doing so arbitrarily or
Burnham, ¶ 5, 76 P.3d at 298. However, to the
extent resolution of this case requires us to address legal
issues, our review is de novo. BTU W. Res., Inc. v.
Berenergy Corp., 2019 WY 57, ¶ 14, 442 P.3d 50,
54-55 (Wyo. 2019); Bourke, ¶ 15, 305 P.3d at
1167 (interpretation of venue statutes is reviewed de
Given Mrs. Saunders filed a Rule 12(b)(3) motion to dismiss,
the court generally accepts the well-pleaded facts in Mr.
Saunders' complaint as being true. See Espinoza v.
Evergreen Helicopters, Inc., 376 P.3d 960, 982 (Ore.
2016); 5B Fed. Prac. & Proc. Civ. § 1352 (3d. ed.
2019) (discussing the identical F.R.C.P 12(b)(3)).
Additionally, "the court must draw all reasonable
inferences and resolve all factual conflicts in favor of the
plaintiff." 5B Fed. Prac. & Proc. Civ. § 1352.
A district court may, however, "examine facts outside
the complaint" to determine whether a case should be
dismissed under Rule 12(b)(3). Id. Thus, as in this
case, the parties may submit affidavits setting forth facts
relevant to the district court's determination of venue
and/or forum non conveniens. Id.
Mr. Saunders' complaint stated he had been a Wyoming
resident for more than sixty days immediately preceding his
filing and he resided in Fremont County. Wyo. Stat. Ann.
§ 20-2-107 (LexisNexis 2017) sets forth the requirements
for a Wyoming district court to acquire jurisdiction over a
(a)No divorce shall be granted unless one of the parties has
resided in this state for sixty (60) days immediately
preceding the time of filing the complaint, or the marriage
was solemnized in this state and one of the parties has
resided in this state from the time of the marriage until the
filing of the complaint.
(b) A married person who at the time of filing a complaint
for divorce resides in this state is a resident although his
spouse may reside elsewhere.
Mrs. Saunders did not dispute the district court had
jurisdiction over the action pursuant to § 20-2-107. She
also acceded to the court's personal jurisdiction over
her. Mrs. Saunders asserted, however, North Carolina was the
more appropriate forum for the parties' divorce and the
distribution of their marital property. Her motion to dismiss
the action and the district court's ...