Court Summaries
| Publication year | 2011 |
| Pages | 38 |
Vol. 34, No. 1, 38. Court Summaries
Issue: February, 2011
Ronald D. Kelly v. Dustin Kilts, Personal Representative of the Estate of Roxle Carol Kelly 2010 WY 151 S-10-0090 November 23, 2010
Ronald D. Kelly and Roxie C. Kelly were married in 1977. They had no children together. Mrs. Kelly filed for divorce on August 9, 2006. Mr. Kelly answered on September 8, 2006. In his Answer, he did not contest the fact that the parties should be divorced. On September 14, 2006, Mrs. Kelly sought an emergency hearing for entry of the divorce decree because of her serious medical need. She did not want Mr. Kelly making health care decisions for her in the event those decisions needed to be made, nor did she want him to be able to claim the marital property as a joint owner should she succumb to her illness. The court attempted to schedule an emergency hearing, but Mr. Kelly and his counsel were unable to attend on such a short notice. The court entered the divorce decree on September 15, 2006. The court did not resolve the issue of the property distribution but specifically reserved that to be decided later. The decision was ultimately affirmed by the Wyoming Supreme Court, but numerous interesting issues were presented and decided along the way.
The first issue, although only meriting a footnote, involved a previous appeal of the case. When the divorce decree was entered without hearing, Mr. Kelly appealed. That appeal was dismissed because the decree was not a final appealable order since the district court retained jurisdiction to resolve the property issues.
The second issue Mr. Kelly raised was that the district court did not follow W.R.C.R 6 because the emergency decree was entered without hearing or even allowing him to respond. According to Mr. Kilts, Rule 6 (c)(1) required a hearing on the motion and also allowed him to serve a response three days before the hearing. Mr. Kilts relies on W.R.C.R 6(c)(2) which allows non-dispositive motions to be decided without a hearing. In this instance, according to Mr. Kelly, this was a non-dispositive motion because the parties conceded they should be divorced. The Wyoming Supreme Court sided with Mr. Kelly and held that the language of W.R.C.R 6(c)(2) is determinative.
The third issue raised by Mr. Kelly is that the district court did not comply with W.R.C.R 12(c) and W.R.C.R 56 in that when the district court relied upon Mrs. Kelly's statements regarding her health and the issues surrounding her health to enter a judgment on the pleadings, it was improperly granting a motion for summary judgment. According to Mr. Kelly, that should not have occurred because the statements relied upon were not in the form of an affidavit sufficient to support summary judgment and even if they could support summary judgment then he should have been given sufficient time to respond. The Wyoming Supreme Court did not agree holding that based on the allegations of the Complaint and the admissions in the Answer, there were no genuine issues of material facts regarding whether the parties should be granted a divorce. Therefore, the district court properly entered the decree.
The fourth issue raised by Mr. Kelly was that by denying him a hearing he was denied his rights to due process under the Fourteenth Amendment of the United States Constitution. The Wyoming Supreme Court recognized that due process does attach to divorce proceedings and in most cases the litigants would be entitled to a hearing. However, the Wyoming Supreme Court held that no property interest was affected because from the pleadings it was clear the parties wanted to be divorced and the only issue was the property division which the district court granted after a hearing.
Craig E. Adelizzi and Betsy Adelizzi v. Mary McGill and Stratton Real Estate 2010 WY 148 No. S-09-0257 November 17, 2010
On April 8, 2006, Craig and Betsy Adelizzi (hereinafter "the Adelizzis") hired Mary McGill as their real estate agent to help them purchase a home. Ms. McGill was an agent for Stratton Real Estate. The Adelizzis found a home being offered for sale by Victoria Lockard. They closed on the property on June 1, 2006. Unbeknownst to the Adelizzis, the house was prone to flooding...
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