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Lew v. Lew

Supreme Court of Wyoming

September 27, 2019

CARLINE ADELLE LEW, Appellant Plaintiff),
v.
FRANK W. LEW, Appellee (Defendant).

          Appeal from the District Court of Sweetwater County The Honorable Nena James, Judge

          Representing Appellant: Michael Stulken, Stulken Law, PC, Gillette, Wyoming.

          Representing Appellee: Elizabeth Greenwood and Inga L. Parsons, of Counsel, Greenwood Law, LLC, Pinedale, Wyoming.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          GRAY, JUSTICE.

         [¶1] In accordance with the Lews' 2007 divorce decree, Frank W. Lew (Father) agreed to establish college accounts in the amount of $50, 000 for each of the parties' two children. Carline Adelle Lew (Mother) managed one account and Father managed the other. Mother brings this appeal to challenge an order requiring her to reimburse funds she removed from the account she managed. She argues that the district court abused its discretion in awarding damages in the amount of $50, 000 without receiving evidence on the matter, and it erred in awarding post-judgment interest beginning in September 2007. She also argues Father is not a real party in interest. We conclude that the district court did not abuse its discretion when it ordered Mother to reimburse the account, and Mother waived the argument regarding the real party in interest. We reverse and remand on the award of post-judgment interest.

         ISSUES

         [¶2] We rephrase the issues:

1. Did the district court err when it found damages in the amount of $50, 000 without receiving evidence on the matter?
2. Did the district court err as a matter of law when it awarded 10% post-judgment interest from September 2007?
3. Is Father the real party in interest?

         FACTS

         [¶3] The parties divorced in 2007. Pursuant to their stipulated divorce decree, Father was to contribute $50, 000 for college accounts for each of the parties' two children. The accounts were established in September 2007. The parties agreed that each parent would be the trustee of one account. Father was to manage SL's $50, 000 account and Mother to manage JL's $50, 000 account.

         [¶4] Mother began withdrawing funds from JL's account leaving a zero balance as of June 30, 2010. The district court issued two orders addressing this problem-one in June 2011 and the other in December 2017. In June 2011, the district court entered a temporary order requiring Mother to reimburse the "education accounts to the level they should have been prior to any withdrawals . . . and in accordance with the amounts reflected in the similar accounts maintained by" Father. Mother did not appeal the order, and she did not reimburse any funds to JL's account.

         [¶5] In February 2017, Father filed a motion for order to show cause why Mother should not be held in contempt for failure to comply with the 2011 order. The district court did not hold an evidentiary hearing. Instead, the court ordered the parties to submit briefs on the "issue of judgment interest with regard to the monies owed" by Mother. In December 2017, the district court entered its second order on the issue, a "Judgment on Order to Show Cause." The court found Mother in contempt and required her to reimburse JL's account by paying Father $132, 138.74 ($50, 000 plus 10% interest calculated from September 2007). The court then ordered Father to "retain reimbursement for those amounts he has expended on J.L.'s education" and put any "remaining amounts" into an "education trust fund to be administered solely" by Father. The court qualified its decision:

4. The total judgment amount is entered to enforce the Decree of Divorce and constitutes judgment pursuant to W.S. ยง ...

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