James L. Hyatt v. Tara M. Hyatt

                IN THE SUPREME COURT, STATE OF WYOMING

                                        

                                                       OCTOBER TERM, A.D. 2023

                                                                   December 29, 2023

 JAMES L. HYATT,

 Appellant
 (Defendant),

 v.                                                   S-23-0117

 TARA M. HYATT,

 Appellee
 (Plaintiff).


                   Appeal from the District Court of Sweetwater County
                        The Honorable Richard L. Lavery, Judge

Representing Appellant:
      Hilary K. Brewster, Rock Springs, Wyoming.

Representing Appellee:
      Crystal D. Stewart, Devon P. O’Connell, Pence and MacMillan LLC, Laramie,
      Wyoming.


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




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.

[¶1] The district court granted James L. Hyatt (Father) and Tara M. Hyatt (Mother) a
divorce, awarded Mother custody of their two minor children, ordered Father to pay child
support, and divided the marital property. Father appeals, challenging the court’s division
of the property and its child support and custody decisions. We affirm.


                                         ISSUES

[¶2]   Father raises three issues which we restate as follows:

       1.     Did the district court abuse its discretion when dividing the marital property?

       2.     Did the district court incorrectly determine Father’s net monthly income for
the purposes of calculating child support?

       3.     Did the district court err by awarding Mother custody of the children?


                                          FACTS

[¶3] Father and Mother married on September 13, 2015. They have two children, a son,
HRH, born in August 2011, and a daughter, HAH, born in January 2018. During most of
the marriage, Father was self-employed at Never Summer Express, LLC (NSE), a long-
haul trucking company. As a long-haul trucker, Father was out of town during the week.
Mother stayed home with the children and homeschooled HRH.

[¶4] In December 2018, Father added Mother as a signer on NSE’s business bank
account, and she became a 50 percent owner of NSE in February 2019. Mother was not
personally compensated during the marriage for her ownership interest other than by
having access to the money transferred from NSE’s business bank account to her and
Father’s personal bank account. During most of the marriage, Father withdrew $8,800
from NSE each month ($4,800 as salary and $4,000 as an owner’s withdrawal), totaling
$105,600 per year. The rest of NSE’s earnings remained in its business bank account.

[¶5] In July 2019, Mother began receiving disturbing text messages from anonymous
phone numbers on her personal cell phone. She believed the messages came from Father
because their content resembled the way he spoke to her during the marriage (i.e.,
“devaluing, lots of blame, just really mean”) and they contained information only he would
know. However, when confronted, he denied sending the messages. In December 2020,
Mother hired a private investigator (PI) to determine the source of the messages. The PI
completed his investigation in April 2021 and concluded Father had sent the messages.

                                             1
[¶6] Three months later, on July 24, 2021, Father removed Mother as a signer on NSE’s
business bank account, cut off her ability to use the parties’ joint credit card, and withdrew
$8,000 from the parties’ joint checking account, leaving Mother with $9,800. Due to these
circumstances and the harassing text messages, Mother did not feel safe around Father so
she and the children moved out of the marital home and into a safe house for fourteen
weeks. While living in the safe house, Mother allowed the children to call or FaceTime
with Father each day but did not allow him physical contact with the children until October
2, 2021. On that date, Mother allowed HRH to stay the night with Father at the marital
home. Since that time, HRH has regularly stayed with Father every other weekend, first at
the marital home and then at Father’s two-bedroom apartment. Although HAH began
visiting Father on October 2, 2021, she had not spent the night at his house by the time of
the trial in August 2022.

[¶7] In August 2021, Mother filed a complaint for divorce and Father counterclaimed for
divorce. Both parties sought custody of the children, child support, a just and equitable
division of the marital property, and attorney fees. Mother also requested alimony during
the pendency of the divorce proceedings. Two months later, the parties agreed Father
would move out of and Mother and the children would move back into the marital home.
Father agreed to pay all household expenses, including the mortgage, not to exceed $2,300
per month, from November 1, 2021, to February 1, 2022.

[¶8] In December 2021, Mother asked the district court for temporary possession of the
marital home, temporary custody of the children, temporary child support and alimony,
and an order requiring Father to pay her attorney fees. Father opposed Mother’s requests
and filed a counter motion for possession of the marital home and visitation with both
children every other weekend. The court heard the motions and entered an order granting
Mother temporary possession of the marital home and temporary custody of the children
subject to Father’s visitation every Wednesday evening from 5 p.m. to 7 p.m. and every
other weekend. It also ordered Father to pay Mother $6,000 per month in alimony and
child support for four months (May 2022 to August 2022) and $10,000 for her attorney
fees.

[¶9] After a bench trial in August 2022, the district court granted the parties a divorce,
divided the marital property, and awarded Mother custody of the children. It granted Father
visitation every other weekend from Thursday to Sunday, two hours on Wednesdays during
the off weeks, and half the summer. The district court ordered Father to pay $2,327 per
month in child support, $3,673 in monthly alimony from November 2022 through August
2023, and $20,000 of Mother’s attorney fees and costs. Father timely appealed.

[¶10] We will provide additional facts, as necessary, in the discussion of the issues.



                                              2
                                       DISCUSSION

       Property Division

[¶11] We review the district court’s division of marital property, including its decision to
award alimony, for an abuse of discretion. Conzelman v. Conzelman, 

,

, 778 (Wyo. 2019). “The ultimate question in determining whether an abuse
of discretion occurred is whether the trial court could have reasonably concluded as it did.”
Metz v. Metz, 

, 

 (Wyo. 2003) (citing Horn v. Welch, 

, 

 (Wyo. 2002)). “We will not disturb a property division in
a divorce case, except on clear grounds, as the trial court is usually in a better position than
the appellate court to judge the parties’ needs and the merits of their positions.” 

 (citing
Paul v. Paul, 

 (Wyo. 1980), and Warren v. Warren, 

(Wyo. 1961)). An abuse of discretion will be found, however, “when ‘the property
disposition shocks the conscience of this Court and appears to be so unfair and inequitable
that reasonable people cannot abide it.’” Innes v. Innes, 

, 

,
262 (Wyo. 2021) (quoting Malli v. Malli, 

, 

, 249 (Wyo.
2020), and Long v. Long, 

, ¶ 22, 

 (Wyo. 2018)).

[¶12] The district court awarded Mother the marital home valued at $500,000 ($216,000
of which was equity), a $90,000 residential lot purchased by the parties during the
marriage, her vehicle (a 2020 Ford F-150 truck), her $8,000 wedding ring, and her
$27,894.63 retirement account with the City of Rock Springs. It valued NSE at $149,000
and gave it to Father. Father also received his $2,567.66 retirement account, his vehicle (a
2019 Ford F-350 truck), the gun safe, and various tools, guns, and ammunition. The court
made Mother responsible for the $1,740.90 monthly mortgage on the marital home and her
$12,683.19 Wells Fargo Visa credit card debt. It made Father responsible for his $2,835.41
Capital One Visa credit card debt and directed him to pay Mother’s American Express
credit card debt totaling $22,145. Although it considered its award of extra property to
Mother to be a “partial substitute for alimony,” the court found Father had the ability to
pay alimony and Mother was “in need of continued temporary support for a short period to
allow [her] an opportunity . . . to establish . . . self-employment or other employment.” It
also took into consideration that Mother had already begun homeschooling HRH for the
2022-2023 school year and would need time to address whether that would continue.
Consequently, the district court ordered Father to pay $3,673 in monthly alimony from
November 2022 through August 2023. Finally, the court determined Father should pay
$20,000 of Mother’s attorney fees because they were necessary for her to carry on and
defend the divorce proceedings.

[¶13] The district court recognized its division of the property was unequal but concluded
such division was equitable under the circumstances given the condition in which the
parties would be left by the divorce, the fact the parties chose for Mother to leave


                                               3
established employment to be a homemaker and the children’s caretaker, and the burdens
imposed on the property for the benefit of the children.

[¶14] Father argues the district court abused its discretion when dividing the marital
property. He challenges the court giving a majority of the property to Mother, the award
of alimony, the requirement that he pay Mother’s American Express credit card debt, and
the court’s attorney fees order. We address each argument in turn.

       Majority of Property to Mother

[¶15] Father claims the evidence does not support the district court giving Mother a
majority of the marital property. He points to the short duration of the marriage, Mother’s
unilateral decision to quit her job so she could stay home with the children and homeschool
HRH, and the fact he contributed more pre-marital assets to the marriage than Mother. He
maintains the court should have equally divided the property.

[¶16] The disposition of marital property in a divorce is governed by 

(a) (LexisNexis 2023) which states in relevant part:

              [I]n granting a divorce, the court shall make such disposition
              of the property of the parties as appears just and equitable,
              having regard for the respective merits of the parties and the
              condition in which they will be left by the divorce, the party
              through whom the property was acquired and the burdens
              imposed upon the property for the benefit of either party and
              children.

“There are no specific guidelines as to the weight the district court must afford the statutory
considerations when making a property division.” Malli, ¶ 16, 460 P.3d at 249 (citing
Wallop v. Wallop, 

, 

 (Wyo. 2004); Paul, 

). Although § 20-2-114(a) contemplates a distribution that is “just and equitable,” it
“does not require an equal division of property, and we have said a just and equitable
division is as likely as not to be unequal.” Dutka v. Dutka, 

, 

, 323 (Wyo. 2023) (citations and internal quotation marks omitted). “The equity of a
district court’s property division is evaluated ‘from the perspective of the overall
distribution rather than from a narrow focus on the effects of any particular disposition.’”

 (quoting Innes, ¶ 17, 500 P.3d at 262, and Stevens v. Stevens, 

, 

 (Wyo. 2014)).

[¶17] Given the evidence before it, the district court did not abuse its discretion when
determining that an unequal distribution of the property was just and equitable in this case.



                                              4
[¶18] The parties were married for almost six years prior to their separation. However,
they lived together for over ten years. The parties initially lived in Father’s pre-marital
home. They sold that home and used the proceeds to purchase and remodel the marital
home. Mother used Father’s pre-marital vehicle during most of the marriage.
Nevertheless, Mother also contributed pre-marital assets to the marriage. She sold her pre-
marital home and used a portion of the sale proceeds “to pay for a very large part” of the
parties’ “very expensive” wedding and to purchase the vacant residential lot. Moreover,
although Father used a portion of his retirement account from a previous employer to help
pay for the parties’ wedding and the residential lot, he used a larger portion of the
retirement account and all of a pension to start and expand NSE, which he was awarded in
the property division.

[¶19] Mother has a degree in architectural studies and was working full-time as a building
inspector for the City of Rock Springs earning approximately $29 per hour when the parties
met in the Spring of 2010. She left that job when HRH was six months old and stayed
home with him for two years. At that time, she began working part-time at a local
architecture firm earning $20 per hour. She quit that job six months after the parties’
marriage in September 2015 and has not worked outside of the home since that time.
Mother testified the parties agreed she would stay home with the children. Father claims
Mother unilaterally decided to quit her job as a building inspector and promised to
supplement the lost income by opening an in-home daycare, but she did not. The district
court decided which party made the decision for Mother to stay home with the children
was irrelevant and we agree. The reality was that during the marriage, Mother did not work
outside the home while Father provided for the family through NSE. Father was awarded
NSE in the property division, so he continues to have a steady source of significant income.
In contrast, Mother has no income and must find employment given her role as a stay-at-
home mother during the marriage. Consequently, there was a reasonable basis for the
district court to conclude as it did, and we cannot find such conclusion was an abuse of
discretion. Cf. Malli, ¶ 17, 460 P.3d at 249-50 (finding no abuse of discretion where district
court awarded wife a 160-acre parcel gifted to husband by his parents where husband
received most of the business assets and therefore “he will be able to continue operating
his businesses as he has in the past” while the wife would have to find “a completely new
income stream” given her inconsistent employment history outside the family businesses
and her role as a stay-at-home mother).

       Alimony

[¶20] The same statute that governs the division of marital property also provides for an
award of alimony:

              The court may decree to either party reasonable alimony out of
              the estate of the other having regard for the other’s ability to
              pay and may order so much of the other’s real estate or the rents

                                              5
              and profits thereof as is necessary be assigned and set out to
              either party for life, or may decree a specific sum be paid by
              either party.

Section 20-2-114(a). “‘The purpose of alimony is to provide a post-divorce substitute for
the support provided to a spouse during the marriage’” when the spouse is “‘unable to
adequately provide for . . . herself.’” Kamm v. Kamm, 

, ¶ 10, 

 (Wyo. 2016) (quoting Stevens, ¶ 15, 

). “An award of property is a
preferable modern substitute for alimony. . . . When alimony is awarded in the absence of
a stipulated settlement between the parties, the record must reflect some evidence that
alimony, with its special features, is needed. If the intent is to adjust the equities between
the parties at the time of the divorce, property division, which may encompass a series of
payments, is the preferable method.” Johnson v. Johnson, 

 (Wyo. 2000)
(citations omitted). “‘[U]nder ordinary circumstances[,] . . . one spouse should not have a
perpetual claim on the earnings of the other [and a] divorce . . . should sever the ties of the
parties and they should begin to start their lives anew.’” Stevens, ¶ 15, 

-08
(quoting Belless v. Belless, 

, 

 (Wyo. 2001), and Grosskopf
v. Grosskopf, 

 (Wyo. 1984)). However, in some cases, “‘alimony may
be a necessity.’” 

 (quoting Belless, ¶ 8, 

). Whether a spouse is entitled to
alimony turns on “the ability of the payor spouse to pay and the necessity of support for
the payee.” Neville v. Neville, 

 (Wyo. 2000) (citing Sellers v. Sellers,

 (Wyo. 1989)).

[¶21] Father complains that the district court awarded alimony without making any
findings regarding his ability to pay. He also argues alimony was unwarranted after
February 2022 because Mother did not need support. The essence of his claim that Mother
did not need support is that, in his opinion, she should have found employment while the
divorce case was pending.

[¶22] Father is incorrect when he states the district court awarded alimony without making
any findings that he had the ability to pay. The district court determined Father had the
ability to pay alimony. To the extent Father believes the court should have made more
specific findings supporting that determination, neither party requested special findings of
fact and conclusions of law pursuant to Rule 52(a)(1)(A) of the Wyoming Rules of Civil
Procedure. “When no such request is made, ‘it shall not be necessary for the court to state
its findings, except generally for the plaintiff or defendant.’” Begley v. Begley, 

, 

, 284 (Wyo. 2020) (quoting Rule 52(a)(1)). In any event, the
evidence supported the district court’s determination that Father had the ability to pay
alimony. Father had been operating NSE since December 2018. He withdrew $8,800 per
month from NSE during the marriage. He left NSE’s remaining income in its business
bank account. At the time of the parties’ separation, NSE had approximately $85,000 in
its business bank account and, at the time of trial, approximately $53,000. Given the
district court awarded Father NSE, he continued to have access to that income stream.

                                              6
[¶23] Turning to Mother’s need for support, the evidence showed Mother was not
employed between the parties’ separation and the trial. However, the evidence does not
support Father’s claim that she was unwilling to support herself financially. Once Mother
learned Father had removed her as a signer on NSE’s business bank account and cut her
off from using the parties’ joint credit card, she moved out of the marital home and into a
safe house with the children for fourteen weeks. After leaving the safe house and moving
back into the marital home in October 2021, Mother sought employment in the architecture
field. When her online job search proved unsuccessful, she inquired with the City about
returning to her former position as a building inspector, but the City did not have any open
positions. She also approached the architecture firm where she previously worked, which
offered her a position making $20 per hour. She rejected the offer because it would not
make economic sense for her to accept employment at that wage given the cost of placing
the children in daycare.

[¶24] Mother explained her efforts to find employment to the district court. The court told
Mother she should not expect long-term alimony, she “needed to get on [her] feet,” and
she would probably “need to go out in the world to work.” Mother heeded the court’s
advice. By the time of trial, Mother had completed all steps necessary to open an in-home
daycare the following week. She acknowledged, however, that she did not yet have
children to watch and it would take time to build up the daycare. Given Mother was in the
process of establishing an in-home daycare business, it was entirely reasonable for the
district court to determine an award of additional property and temporary alimony to
Mother was warranted to allow her time to do so.

[¶25] Stevens is instructive. There, the district court ordered the father to pay the mother
$2,000 in monthly alimony for five years. Stevens, ¶ 5, 

. The father
appealed, arguing the mother, who maintained a tax and bookkeeping practice, was not in
need of support. Id., ¶ 14, 

. In affirming, we noted the large disparity in
the parties’ incomes. Id., ¶¶ 5, 16, 

. We also noted that while Mother
had obtained her CPA license during the marriage, she had no significant business
experience or established employment at the time of the divorce because she had only
worked as a CPA for nine months during the marriage before having children and
becoming a stay-at-home mother. Id., ¶¶ 3, 16, 

. Under these
circumstances, we concluded the district court did not abuse its discretion by awarding the
mother alimony.

              [I]t is entirely within the discretion of the trial court to award
              alimony during a transition period wherein the party requesting
              alimony may gain special skills, education, or experience to
              enable the party to raise his or her earning capacity. . . .
              Because of Mother’s dedication as a stay at home mom the


                                              7
              period allowed for alimony [five years] allows her to regain her
              ground as an employable CPA.

Id., ¶ 16, 

 (emphasis omitted). See also, Hendrickson v. Hendrickson, 

 (Wyo. 1978) ( because the mother was not employed during the marriage
and had a young child at the time of the divorce, “a period of transition of four years, during
which she would receive alimony assistance, does not appear unreasonable and was within
the court’s discretion upon the basis of the evidence before it”). Similarly, in this case, the
district court reasonably found an additional ten months of alimony would allow Mother
time to establish an in-home daycare or other employment, while also determining whether
she could continue to homeschool HRH.

[¶26] Father claims Mother did not need alimony because she had the equity in the marital
home and could sell the residential lot. The district court acknowledged that an award of
extra property is preferable to an award of alimony and awarded Mother extra property as
a partial substitute for alimony. However, the court determined Mother needed support in
addition to the property award. We cannot say this was unreasonable, especially since it
would take time for Mother to refinance and/or liquidate the home and residential lot.

[¶27] Father asserts the district court should not have found Mother to have a financial
need because she had considered a divorce two years earlier and should have taken steps
to improve her finances then. This argument is similar to Father’s assertion that Mother
should have found a job while the divorce was pending. Given the complex nature of the
parties’ relationship, it was reasonable for the district court to conclude as it did – that
Mother had a temporary financial need for alimony.

       American Express Credit Card Debt

[¶28] Father argues the district court abused its discretion by making him responsible for
Mother’s American Express credit card debt because it was incurred within 90 days after
the parties’ separation. He claims such post-separation debt is typically considered the
responsibility of the party which incurred the debt.

[¶29] Father cites no authority, and we have not uncovered any, for the proposition that
post-separation debt is typically the responsibility of the party incurring it. Rather, for
purposes of determining the appropriate date on which to value property and the effective
date of the division of property, we have determined these matters are “within the broad
and sound discretion of the trial court.” Wallop, ¶ 11, 

. “Thus, equitable
factors may dictate a valuation date, and in order to do equity in dividing property in a
divorce case, the trial court must be permitted to utilize alternative valuation dates, where
reasonable under the facts and circumstances presented in the particular case, in order to
make truly equitable awards consistent with the legitimate expectations of the parties.” Id.,
¶ 12, 

 (quoting 27B C.J.S., Divorce § 545) (emphasis omitted). “We

                                              8
recognize that there are numerous factual situations which might warrant valuing the assets
at a time other than the date of the filing of the divorce action. Some of those situations
include: post-separation changes in value due to the efforts of one party; a lack of financial
involvement of one party; purposeful dissipation of assets subsequent to separation; and
bad faith efforts to delay a divorce proceeding.” Id. (emphasis added). The same is true
when the district court is dividing debt. When it is “valued” and what debt should be
divided is within the sound discretion of the district court.

[¶30] In this case, the district court reasonably decided Father should pay Mother’s
American Express credit card debt, even though she incurred it after the parties’ separation.
The evidence showed that despite Mother having a 50 percent ownership interest in NSE,
Father took it upon himself to remove Mother as a signer on NSE’s business bank account
on the date of separation, thereby depriving her of access to over $85,000. While he
claimed he removed her as a signer because he believed she would take the money in the
account, he admitted she had never withdrawn money from that account without his
permission. He also, without warning, cut Mother off from her using the parties’ joint
credit card and left her with a mere $9,800 in their joint checking account. To pay her
expenses after the parties’ separation, Mother used her American Express credit card until
Father agreed to and then was ordered by the court to provide her with support. As the
district court aptly found, it was “reasonable” for Mother to have incurred this debt for
personal expenses after the parties’ separation and having Father pay it would “offset the
limited support [he] provided between the separation of the parties and the temporary
hearing.”

       Attorney Fees

[¶31] After trial, Mother submitted a motion for attorney fees and costs pursuant to 

 (LexisNexis 2023) seeking $48,728.50 in attorney fees and
$6,443.34 in costs. To the motion, she attached the affidavit of one of her attorneys which
averred the charged hourly rates ($300 for one attorney and $200 for another attorney) were
reasonable for attorneys with their years of experience in divorce litigation.

[¶32] The district court determined the attorneys’ billings “appear[ed] to be accurate and
fair, especially in light of the fact that counsel wrote off portions of the trial preparation in
[the] exercise of billing judgment.” Nevertheless, the court found the total sought was
“disproportionate to the case and the marital estate.” As a result, it denied Mother’s request
for $55,171.84 in attorney fees and costs and required Father to pay $20,000.

[¶33] Father argues the district court abused its discretion by ordering him to pay Mother’s
attorney fees and costs because they were excessive. He claims it was unreasonable for
Mother to hire two attorneys and complains that much of their work was unnecessary.



                                               9
[¶34] We review an award of attorney fees for an abuse of discretion. McMurry v.
McMurry, 

, 

 (Wyo. 2010). Section 20-2-111
provides:

              In every action brought for divorce, the court may require
              either party to pay any sum necessary to enable the other to
              carry on or defend the action and for support and the support
              of the children of the parties during its pendency. The court
              may decree costs against either party and award execution for
              the costs, or it may direct costs to be paid out of any property
              sequestered, in the power of the court, or in the hands of a
              receiver. The court may also direct payment to either party for
              such purpose of any sum due and owing from any person.

 “The purpose of attorney fees in a divorce case is to assist the party, as necessary, so that
the party can carry on or defend the action.” Black v. De Black, 

 (Wyo.
2000) (citing Hendrickson, 

, and Prentice v. Prentice, 

(Wyo. 1977)). Attorney fees and costs “become ‘necessary’ . . . [when a] party has no
choice but to incur [them] in defending against, or pursuing, a complaint for divorce.”
McMurry, ¶ 19, 

. The party requesting fees need not “prove financial
necessity, nor is the award meant to punish the [other] party.” Id., ¶ 17, 

(emphasis omitted) (citing Black, 

, and Hendrickson, 

).
However, “[t]he party seeking to recover attorney’s fees bears the burden of demonstrating
the reasonableness of the fees and must also submit an itemized billing reflecting the time
and rate charged.” Black, 

 (citing Pekas v. Thompson, 

(Wyo. 1995), and Hinckley v. Hinckley, 

 (Wyo. 1991)).

[¶35] We see no abuse of discretion in the district court’s attorney fee and costs award.
Mother incurred significant fees and costs to (1) obtain financial support from Father, (2)
prove Father was the anonymous texter, (3) demonstrate the value of NSE and Father’s
income from NSE, and (4) participate in mediation. It was reasonable for the district court
to conclude these expenses were “necessary” because Mother had no choice but to incur
them in prosecuting and defending the divorce. With respect to the reasonableness of the
requested fees, Mother submitted itemized billings reflecting the time expended on each
task and the billing rate. The district court found the billings to be accurate and fair and
Father has not demonstrated otherwise. We cannot find the award of reduced attorney fees
constituted an abuse of discretion.

       Child Support

[¶36] Father argues the district court erred in calculating his net monthly income for
purposes of determining child support.


                                             10
[¶37] “A district court has broad discretion in determining the correct amount of child
support.” Marquis v. Marquis, 

, 

, 218 (Wyo. 2020) (citing
Davidson v. Carrillo, 

, 

 (Wyo. 2014)). “Child support
calculations are governed exclusively by statute.” Ackerman v. Ott, 

,

 (Wyo. 2014) (citing Ready v. Ready, 

, 

 (Wyo. 2003)). “The first step in calculating child support is to determine each parent’s
monthly income and net monthly income” under 

(a)
(LexisNexis 2023). Marquis, ¶ 21, 476 P.3d at 218 (citing Ackerman, ¶ 9, 

). Section 20-2-303(a) defines “income” and “net income” as follows:

                  (ii) “Income” means any form of payment or return in
              money or in kind to an individual, regardless of source.
              Income includes, but is not limited to wages, earnings, salary,
              commission, compensation as an independent contractor . . .
              and any other payments made by any payor . . . .             In
              determining income, all reasonable unreimbursed legitimate
              business expenses shall be deducted. . . .
                  (iii) “Net income” means income as defined in paragraph
              (ii) of this subsection less personal income taxes, social
              security deductions, cost of dependent health care coverage for
              all dependent children, other court-ordered support obligations
              currently being paid and mandatory pension deductions.

[¶38] The district court’s child support award was based on its finding that Father’s net
monthly income was $15,423. To determine Father’s net monthly income, the district court
took the ordinary business income from NSE’s tax return for 2019, added the depreciation
deduction from that tax return back into that income, and then added that amount to the
adjusted gross income from the parties’ 2019 personal tax return. It did the same for tax
years 2020 and 2021. It then took the average of these amounts and divided it by twelve
months to arrive at Father’s net monthly income. The district court explained it added the
depreciation deductions back into NSE’s ordinary business income because depreciation
deductions for federal tax purposes do not require an actual expenditure, and therefore,
they are not deductible from income as a “reasonable unreimbursed legitimate business
expense” under § 20-2-303(a)(ii).

[¶39] Father presents a hodgepodge of arguments claiming the district court abused its
discretion in determining his net monthly income when calculating his child support
obligation. First, he maintains $8,800 should have been used as his monthly “income”
because the undisputed evidence showed he only earned $8,800 per month from NSE.
However, for purposes of calculating child support, “income” means “any form of payment
or return in money or in kind to an individual, regardless of source. Income includes, but
is not limited to wages, earnings, salary, commission, compensation as an independent
contractor . . . and any other payments made by any payor . . . .” Section 20-2-303(a)(ii).

                                            11
Father’s argument ignores that his salary and owner’s withdrawal represented only a
portion of his “income.” His other “income” remained in NSE’s business bank account
and at the time of the parties’ separation and trial, the account contained $85,000 and
$53,000, respectively. While Father testified this money was being saved for necessary
maintenance on NSE’s equipment and other operating expenses, he does not provide any
argument or legal authority that these expenses are “reasonable unreimbursed legitimate
business expense[s]” which should be deducted from his income. In any event, NSE’s
ordinary business income on its tax returns was calculated after taking deductions for
“[r]epairs and maintenance.”

[¶40] Second, Father argues the district court erred in adding the depreciation deductions
back into NSE’s ordinary business income for purposes of calculating his net income.
While he agrees depreciation can be added back into income to calculate child support, he
claims a “reasonable unreimbursed legitimate business expense” is a defense to the
addition of deprecation back into income and depreciation may not be counted if there is
debt associated with the depreciated assets. He claims the depreciation deductions in this
case actually represent the loan payments NSE makes on its equipment and the loan
payments are “reasonable unreimbursed legitimate business expense[s]” which are
deductible from income.

[¶41] “When calculating a parent’s child support obligation, the focus is whether an
expense, including depreciation, is a ‘reasonable unreimbursed legitimate business
expense’” under § 20-2-303(a)(ii). Marquis, ¶ 25, 476 P.3d at 219 (citing Watson v.
Watson, 

, 

 (Wyo. 2002), and Ackerman, ¶ 11, 

). The party seeking to deduct depreciation as a “reasonable unreimbursed legitimate
business expense” bears the burden of proof. 

 (citing Watson, ¶ 16, 

).

[¶42] “‘[T]he purpose of depreciation is to assist a person in regaining their
expenditures[.]’” Id., ¶ 26, 476 P.3d at 219 (emphasis in original) (quoting Houston v.
Smith, 

 (Wyo. 1994)). Because it does not directly affect cash flow in
later years, depreciation is not a “reasonable unreimbursed legitimate business expense”
for calculating “income” under § 20-2-303(a)(ii). Id. See also, Lemus v. Martinez, 

, ¶ 24, 

 (Wyo. 2019) (“[W]hile amortized depreciation of business
property is a legitimate deduction for federal income tax purposes, it is not deductible from
a party’s income as a ‘reasonable unreimbursed legitimate business expense’ to determine
child support.”) (citations omitted). On the other hand, “if debt financed the purchase of
the depreciable asset, and the debt payments coincided with the depreciation of the asset,”
the depreciation may affect cash flow in that year and be considered a “reasonable
unreimbursed business expense.” Marquis, ¶ 29 & n.4, 476 P.3d at 220 n.4. Nevertheless,
as we recognized in Marquis, “[t]his would be difficult to prove,” and Father did not meet
his burden in this case. Id. He testified NSE financed its semi-truck and trailers. NSE’s
accountant’s report also indicated there was debt associated with the semi-truck and


                                             12
trailers. However, there was no evidence showing any “debt payments coincided with the
depreciation of [these] asset[s].”

[¶43] Relying on Marquis, Father argues that even if the district court properly added the
depreciation deductions to NSE’s ordinary business income, it should have only included
50 percent of the depreciation deductions because Mother owned the other 50 percent of
NSE. In Marquis, however, the depreciation deduction at issue was taken by a company
which the father shared with a third party. Marquis, ¶¶ 3-4, 476 P.3d at 215. In this case,
Father was awarded NSE in the property division and its future income belongs solely to
him. As a result, it was reasonable for the district court to add in all of the depreciation
when calculating income from NSE.

[¶44] Father maintains adding depreciation to NSE’s ordinary business income fails to
accurately reflect his NSE income because NSE used an accelerated depreciation method.
Father’s argument is illogical. Our rules provide for adding back into business income
depreciation that does not represent an actual business expenditure. The method used to
calculate the depreciation makes no difference to the end result. Depreciation, whatever
its amount, is added back in to accurately reflect the income of the business.

[¶45] Father also argues the district court’s calculation of his net monthly income ignores
that NSE’s expenses have recently increased, making his future income less. As we stated
above, the calculation of child support is within the district court’s discretion. Marquis, ¶
20, 476 P.3d at 218. Because the district court had objective historical evidence of Father’s
income from 2019-2021, and did not have objective evidence about future expenses, it was
not an abuse of discretion to rely on the established historical income of NSE.

[¶46] Finally, Father claims the district court failed to reduce his income by the $225.00
health insurance premium he pays for the children each month. Father’s assertion is
incorrect. Under § 20-2-303(a)(iii), “‘[n]et income’ means income . . . less personal income
taxes, social security deductions, [and] cost of dependent health care coverage for all
dependent children[.]” The district court determined Father’s net monthly income after
deducting “federal income tax, social security, Medicare, and health insurance.”

[¶47] We see no abuse of discretion in the district court’s calculation of Father’s net
monthly income when determining child support.


       Child Custody

[¶48] We review the district court’s custody decision for an abuse of discretion:

              Custody [and] visitation . . . are all committed to the sound
              discretion of the district court. . . . We do not overturn the

                                             13
              decision of the trial court unless we are persuaded of an abuse
              of discretion or the presence of a violation of some legal
              principle. . . . A court does not abuse its discretion unless it
              acts in a manner which exceeds the bounds of reason under the
              circumstances. Our review entails evaluation of the sufficiency
              of the evidence to support the district court’s decision, and we
              afford the prevailing party every favorable inference while
              omitting any consideration of evidence presented by the
              unsuccessful party. Findings of fact not supported by the
              evidence, contrary to the evidence, or against the great weight
              of the evidence cannot be sustained. Similarly, an abuse of
              discretion is present when a material factor deserving
              significant weight is ignored.

Baer v. Baer, 

, 

, 635 (Wyo. 2022) (citations omitted).

[¶49] In awarding custody and visitation, the children’s best interests are “paramount.”
Johnson v. Johnson, 

, 

, 32 (Wyo. 2020) (quoting Arnott v.
Arnott, 

, 

 (Wyo. 2012), and Stonham v. Widiastuti,

, ¶ 17 n.8, 

, 1194 n.8 (Wyo. 2003)). To determine the children’s
best interests, a district court must consider the following list of non-exclusive factors:

                     (i) The quality of the relationship each child has with
              each parent;
                     (ii) The ability of each parent to provide adequate care
              for each child throughout each period of responsibility,
              including arranging for each child’s care by others as needed;
                     (iii) The relative competency and fitness of each parent;
                     (iv) Each parent’s willingness to accept all
              responsibilities of parenting, including a willingness to accept
              care for each child at specified times and to relinquish care to
              the other parent at specified times;
                     (v) How the parents and each child can best maintain
              and strengthen a relationship with each other;
                     (vi) How the parents and each child interact and
              communicate with each other and how such interaction and
              communication may be improved;
                     (vii) The ability and willingness of each parent to allow
              the other to provide care without intrusion, respect the other
              parent’s rights and responsibilities, including the right to
              privacy;
                     (viii) Geographic distance between the parents’
              residences;

                                            14
                     (ix) The current physical and mental ability of each
              parent to care for each child;
                     (x) Any other factors the court deems necessary and
              relevant.

(a) (LexisNexis 2023). “‘No single factor is determinative,’
and ‘depending on the case, different factors will present a greater need for emphasis. The
one constant is that the resolution must be in the [children’s] best interests[.]’” Johnson, ¶
12, 458 P.3d at 33 (quoting Stevens, ¶ 26, 

).

[¶50] After considering the above statutory factors, the district court determined it was in
HRH’s and HAH’s best interests for Mother to have custody. It considered most of the
factors to be neutral. Section 20-2-201(a)(iv), (v), (vi), (vii), (viii), (ix). However, it found
factors (i), (ii), and (iii) weighed in favor of awarding Mother custody. Father takes issue
with the district court’s conclusions on factors (i) through (v) and (vii). Father’s arguments
essentially ask us to reevaluate the evidence and make an independent decision about
custody, rather than giving Mother’s evidence every favorable inference and omitting
consideration of his contrary evidence. When we apply our standard of review, we cannot
find that the decision of the district court exceeded the bounds of reason under the
circumstances. Baer, ¶ 18, 522 P.3d at 635.

       A. Factor (i). The quality of the relationship each child has with each parent.

              The district court found the first factor weighed in favor of Mother
       because she “ha[d] been the [children’s] primary caretaker.” It was
       undisputed that Mother had always been the children’s primary caregiver and
       Father had limited time with the children because he worked out of town
       during the week. “While not determinative, primary caregiver status is a
       weighty factor that the district court must consider.” Martin v. Hart, 

, ¶ 22, 

 (Wyo. 2018). Father acknowledges that
       Mother always had a good relationship with the children and provided more
       care because she was home with them full-time. He argues that the district
       court should have concluded this factor to be neutral, as he improved his
       relationship with HRH since the parties’ separation. Applying our standard
       of review, however, we cannot conclude the district court’s conclusion was
       against the great weight of the evidence or exceeded the bounds of reason.

       B. Factor (ii). The ability of each parent to provide adequate care.

              The district court decided both parties had the ability to provide
       adequate care for HRH and HAH throughout their periods of responsibility,
       including arranging for each child’s care by others as needed. However, it
       weighed this factor “slightly” in favor of Mother because Father “ha[d] work

                                               15
to do, in particular, work to improve his relationship with [HAH]” and
needed “to provide a better place for the kids to live.” Although Father
wanted HAH to be comfortable enough to spend the night at his apartment,
he did not have a bed for her. He indicated he could change jobs so he would
not be on the road, but had not attempted to do so.

C. Factor (iii). The relative competency and fitness of each parent.

        The court found the third factor weighed in favor of Mother. It
determined both parents were fit. Most concerning to the court was that
Father had verbally abused Mother through the harassing text messages,
which led Mother to present “as someone who is somewhat fragile and whose
fragility impacts her parenting.” Father disputes sending the messages, and
once again asks us to make an independent decision based on his evidence,
ignoring our standard of review. The district court found the evidence
indicating Father sent the messages to be credible, and did not believe
Father’s alternate explanation. We defer to the court’s determination because
it was in the best position to assess witness credibility and weigh testimony.
Johnson v. Clifford, 

, ¶ 8, 

 (Wyo. 2018)
(citing Drake v. McCulloh, 

, 

 (Wyo.
2002)). Applying our standard of review, it was reasonable for the district
court to conclude as it did on factor (iii).

D. Factor (iv). Each parent’s willingness to accept all responsibilities of
   parenting and to relinquish care at specified times.

       Father maintains the court erred in finding the fourth factor to be
neutral when the evidence showed it weighed in his favor. He argues the
evidence showed Mother was willing to accept the physical responsibilities
of parenting but not its financial responsibilities. He urges us to ignore that
Mother has attempted to get a job and actively developed a plan for self-
employment, something we cannot do under our standard of review. He
argues Mother was unwilling to provide visitation while she was in the safe
house but ignores that she feared for herself and the children because of his
threatening texts. There was evidence to reasonably support the district
court’s conclusion on factor (iv), and we cannot find it an abuse of discretion.

E. Factors (v) and (vii). How the parents and each child can best
   maintain and strengthen relationships; the willingness of each parent
   to allow the other to provide care without intrusion.

       Father contends the court should have weighed the fifth and seventh
factors in his favor rather than as neutral. As with factor (iv), Father argues

                                      16
       the district court should have given more weight to Mother’s actions while
       at the safe house. Again, he ignores our standard of review along with
       evidence supporting the district court’s conclusion. The district court
       recognized strengths and weaknesses of each party, and the conclusion that
       each of these factors resulted in a neutral balance between the parties was not
       an abuse of discretion.

[¶51] Father claims the evidence supports the parties sharing custody of the children,
which, he says, is the “most favorable custodial arrangement between parents and
children.” Father is incorrect that shared custody is legally the most favorable custody
arrangement. In Bruegman v. Bruegman, 

, ¶¶ 13, 16, 

(Wyo. 2018), we reversed our precedent holding that shared custody was disfavored.
However, we did not say that shared custody was the most favorable custodial arrangement.
We merely determined “there is no presumption that shared custody is contrary to the best
interests of the children and shared custody should be considered on an equal footing with
other forms of custody.” Id., ¶ 16, 

. We reiterated that the focus when
determining child custody is on choosing the custody arrangement which is in the best
interests of the children. 

[¶52] As the district court aptly noted, determining custody “is one of the most difficult
and demanding tasks assigned to a trial judge” because “[s]eldom, if ever, does a divorce
court have a choice between a parent who is all good on one side and a parent who is all
bad on the other side.” “The practical result of a marriage dissolution is that parenting and
family life will not be the same” and a district court’s “objective is not to reconstruct a
family that is no more, but to provide the framework for a new family that can best serve
the children.” Given the evidence, we cannot say the district court abused its discretion
when determining the children’s interests would best be served by awarding Mother
custody.

       Appellate Fees

[¶53] Mother requests we order Father to pay her attorney fees and costs under Rule
10.05(b) of the Wyoming Rules of Appellate Procedure (W.R.A.P) and § 20-2-111. She
seeks $10,886 in fees and $821.60 for costs.

[¶54] Rule 10.05(b) provides:

                  (b) If the court certifies, whether in the opinion or upon
              motion, there was no reasonable cause for the appeal, a
              reasonable amount for attorneys’ fees and damages to the
              appellee shall be fixed by the appellate court and taxed as part
              of the costs in the case. The amount for attorneys’ fees shall
              not be less than one hundred dollars ($100.00) nor more than

                                             17
              ten thousand dollars ($10,000.00). The amount for damages to
              the appellee shall not exceed two thousand dollars ($2,000.00).

“Sanctions are not typically available when an appeal challenges a district court’s
discretionary ruling. . . . However, we will award sanctions in those rare circumstances
where an appeal lacks cogent argument, there is an absence of pertinent legal authority to
support the issues, or there is a failure to adequately cite to the record.” Montoya v.
Navarette-Montoya, 

, 

 (Wyo. 2005) (citations and
internal quotation marks omitted).

[¶55] Mother acknowledges we generally do not award attorney fees as a sanction under
Rule 10.05(b) when an appeal challenges a discretionary ruling. Nevertheless, she
contends Rule 10.05(b) sanctions are appropriate here because Father filed a frivolous brief
making baseless challenges to the district court’s order on custody and visitation, alimony,
and property division. She also claims his brief lacks cogent argument and citation to the
record. We decline to award Rule 10.05 sanctions. Father challenged only discretionary
rulings and his brief, while at times missing record citations and citation to legal authority,
raised cogent arguments.

[¶56] We further decline to award attorney fees under § 20-2-111.


                                      CONCLUSION

[¶57] The district court did not abuse its discretion by awarding Mother a majority of the
marital property and ordering Father to pay alimony, Mother’s American Express credit
card debt, and $20,000 of her attorney fees. The district court did not abuse its discretion
in calculating Father’s net monthly income for purposes of determining child support or by
granting Mother custody of the children. Each party should bear his or her own attorney
fees incurred in this appeal. Mother is awarded costs under W.R.A.P. 10.05(a).

[¶58] Affirmed.




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