author: GREENWOOD, Judge.

text:
    2003 UT App 283
    Robert W. DUNLAP and Kathy L. Dunlap, individuals; and United Park City Mines Co., a Delaware corporation, Plaintiffs and Appellees, v. STICHTING MAYFLOWER MOUNTAIN FONDS, a Netherlands - association; Mayflower Recreational Fonds, a Netherlands association; Consolidated Mayflower Mines, Inc., a Utah corporation; Cooperative Centrale Raiffeisen Boerenleenbank, B.A., a Netherlands corporation; Newpark Mining Co., a dissolved Utah corporation; Lon Investments, a dissolved Utah corporation; and Murray First Thrift & Loan Co., a Utah corporation, Defendants and Appellants.
    No. 20010724-CA.
    Court of Appeals of Utah.
    Aug. 7, 2003.

      E. Craig Smay, Salt Lake City, for Appellants.
    Val R. Antezak and Laura S. Scott, Parsons Behle & Latimer, Salt Lake City, for Appellees.
    Before Judges DAVIS, GREENWOOD, and ORME.
   OPINION

GREENWOOD, Judge.

{1 This case comes before the court on appeal from a grant of summary judgment for Plaintiffs, Robert W. Dunlap, Kathy L. Dunlap, and United Park City Mines Company (collectively, the Dunlaps). Defendants, Stichting Mayflower Mountain Fonds and Mayflower Recreational Fonds (collectively, Mayflower), appeal the trial court's grant of summary judgment quieting title to a patented mining claim (the Marsac Lode) in Summit County, Utah, in the Dunlaps. We reverse.

BACKGROUND

I. Chain of Title to the Marsac Lode

T2 Both parties assert ownership of the Marsac Lode through differing chains of title.

A. - Dunlaps's Chain of Title

T 83 The Dunlaps assert that their chain of title to the Marsac Lode derives from numerous transfers, commencing April 30, 1982, when Star of Utah Mining Company transferred, by recorded deed, its interest in the Marsac Lode to New Park Mining Company of Utah (New Park-Utah). Soon thereafter, on May 16, 1982, New Park-Utah transferred, by recorded deed, its interest in the Marsac Lode to New Park Mining Company of Nevada (New Park-Nevada)

T4 On May 2, 1938, Park City Development Company (Park City Development) deeded the Marsac Lode to International Smelting and Refining Company (International Smelting), to secure repayment of $3,000 Park City Development borrowed from International Smelting to purchase the Marsac Lode from the "then owner." After 1939, all taxes on the Marsac Lode were assessed to International Smelting and its successors in interest.

15 On March 29, 1941, International Smelting brought suit to foreclose the lien created by the May 2, 1988 deed with Park City Development (1941 Foreclosure Action). The complaint, describing all corporate defendants as Utah corporations, named both Park City Development and "New Park Mining Company, a corporation," as defendants. On the same day the complaint was filed, "New Park Mining Company" disclaimed any interest in the Marsac Lode. The court subsequently ordered a sheriff's sale of the Mar-sac Lode. International Smelting was the highest bidder at the sheriff's sale. On January 19, 1942, a Sheriff's Deed was issued, conveying the Marsac Lode to International Smelting. In 1987, Atlantic Richfield Company, a successor by merger of Anaconda Company, which was in turn a successor by merger of International Smelting, quit-claimed its interest in the Marsac Lode to AMI Associates (AMI). All taxes were thereafter assessed to AMI. Through two deeds dated April 18, 1994 and November 8, 1999, AMI quitclaimed its interest in 'the Marsac Lode to the Dunlaps. All taxes from 1993 to the present have been assessed to and paid by the Dunlaps.

B. Mayflower's Chain of Title

T6 Mayflower's chain of title also originates from New Park-Utah's deed of the Marsac Lode to New Park-Nevada. However, Mayflower argues that New Park-Nevada never divested its ownership of the Mar-sac Lode until 1972, when it conveyed the property by recorded deed to Lon Investment (Lon). In October 1981, a quitelaim deed was recorded conveying the Marsac Lode from Lon to Mayflower.

II. Procedural History

T7 In July 2000, the Dunlaps filed a complaint seeking to quiet title to the Marsac Lode. The Dunlaps filed a Motion for Summary Judgment asserting fee simple ownership of the Marsac Lode through deeds from New Park Mining Corporation, International Smelting, and AMI. Mayflower filed a Cross Motion for Summary Judgment, asserting that their title to the property was superior through deeds from New Park-Nevada and Lon.

T8 After a hearing, the trial court granted summary judgment for the Dunlaps, and entered Findings of Fact, Conclusions of Law and Order on December 20, 2001. Although concluding that the Dunlaps could not establish a claim of adverse possession or waiver, the court determined that the 1941 Foreclosure Action foreclosed New Park-Nevada's interest in the Marsac Lode. The court also concluded that New Park-Nevada's claim was barred by estoppel in pais. The court ordered quiet title to the Marsac Lode in the Dunlaps. Mayflower appeals.

ISSUE AND STANDARD OF REVIEW

T9 Mayflower appeals the trial court's grant of summary judgment to the Dunlaps, quieting title to the Marsac Lode in the Dunlaps. "Summary judgment is granted only when 'there is no genuine issue as to any material fact' and 'the moving party is entitled to a judgment as a matter of law.' " Bearden v. Croft, 2001 UT 76,¶ 5, 31 P.3d 537 (quoting Utah R. Civ. P. 56(c)). "In reviewing a grant of summary judgment, [this court] ... gives 'no deference to the trial court's conclusions of law: those conclusions are reviewed for correctness." Id. (quoting Blue Cross & Blue Shield v. State, 779 P.2d 634, 636-37 (Utah 1989)).

ANALYSIS

$10 Mayflower contends that the trial court erred in determining that the 1941 Foreclosure Action terminated New Park-Nevada's interest in the Marsac Lode. "A quiet title action requires the application of a rule of law to decide ownership of the property in question." Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3,¶ 18, 5 P.3d 1206. Where, as here, each party claims ownership through different chains of title, "each party should assume the burden of establishing by competent evidence its title to the land respectively claimed." Music Serv. Corp. v. Walton, 20 Utah 2d 16, 432 P.2d 334, 336 (1967). We disagree with the trial court's determination that Mayflower's claim was terminated by the 1941 Foreclosure Action for two reasons: (1) Park City Development did not have a recorded interest in the Marsac Lode to transfer to International Smelting, and (2) foreclosure cannot be used to eliminate the interest of one with a superior recorded interest.

T11 Both parties agree that New Park-Nevada was the record owner of the Marsac Lode in 1988, when the Park City Development deed purporting to grant a mortgage interest to International Smelting was created. However, no recorded deed exists between New Park-Nevada and Park City Development for the Marsac Lode. In 1988, the recording statute in effect was similar to Utah's current race-notice statute. The former statute stated:

Every conveyance of real estate hereafter made, which shall not be recorded as provided in this title, shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any portion thereof, where his own conveyance shall be first duly recorded.

Utah R.S. § 78-8-3 (1983). Under this statute, only a recorded deed from New Park-Nevada to Park City Development could have protected Park City Development and those claiming under it from recorded subsequent transfers by New Park-Nevada. Because there is no such recorded deed, the Dunlaps's ownership claim is based merely on a stray title. See Gregerson v. Jensen, 669 P.2d 396, 398 (Utah 1983) (stating buyers "did not obtain the statutory protection enjoyed by subsequent purchasers ... because they did not qualify for that protection by recording their own conveyance (or contract) as required by [section] 57-38-38. As a result, the recording acts do not dictate the outcome of this controversy" (footnote omitted)).

$12 The Dunlaps, however, argue that language in the deed from Park City Development to International Smelting, referring to Park City Development's purchase of the Marsac Lode from the "then owner," could only mean that Park City Development purchased the property and obtained a deed from New Park-Nevada. However, a deed, if one ever existed, was never recorded. "[If the grantee fails to record, he assumes the risk of a subsequent grantee of the same land acquiring superior rights to his by re-cordation." - Horman v. Clark, 744 P.2d 1014, 1016 (Utah Ct.App.1987) (quotations and citations omitted). Without a recorded deed, we cannot determine that the transfer from New Park-Nevada to Park City Development took place. It may just as well have been that a third party fraudulently caused Park City Development to believe they had purchased the Marsac Lode from its "then owner." - Regardless, when International Smelting brought suit for foreclosure of the mortgage deed, an inspection of the record would have provided notice to International Smelting that the record owner of the Mar-sac Lode was New Park-Nevada, not Park City Development. See U.P.C., Inc v. R.O.A. Gen., Inc., 1999 UT App 303,¶ 35, 990 P.2d 945 ("[Clonstructive notice is imparted when documents are properly recorded."). Having no recorded deed to the Marsac Lode, Park City Development had no protected title to transfer or mortgage as security for a loan.

§13 Where no recorded deed exists between New Park-Nevada and Park City Development, the 1941 Foreclosure Action could not affect the record owner of the Marsac Lode, New Park-Nevada, which was the holder of a superior recorded interest. First, the record indicates New Park-Nevada was not properly named as a party defendant. The complaint referred to the corporate defendants as Utah corporations-New Park-Nevada was a Nevada corporation- and named only Park City Development and "New Park Mining Company, a corporation," as defendants. When the holder of a recorded interest is not joined in an action to foreclose, the foreclosure does nothing to af-feet its interest in the property. See Mickelson v. Anderson, 81 Utah 444, 19 P.2d 1033, 1036 (1932) ("Respondent, while seeking to foreclose her mortgage ... failed to effect a foreclosure because the owner of the property was not a party to the action; hence the decree of foreclosure was void and of no effect ...."); see also Reader v. District Court, 98 Utah 1, 94 P.2d 858, 861 (1939) (quoting Mickelson).

T 14 This rule is applicable here. Because New Park-Nevada was not properly named and joined as a party, the 1941 Foreclosure Action could have no effect on New Park-Nevada's interest, which was deeded to Mayflower through subsequent recorded transfers.

115 Second, and most importantly, a mortgage foreclosure action can only affect the interests of a mortgagor and others who hold subsequent and inferior interests to the mortgagee.

The general rule is that a mortgage may be foreclosed against the owner of the equity of redemption or any person whose rights are subordinate to the mortgage, but not against one to whose rights the mortgage is subject, for a foreclosure is not the proper proceeding in which to litigate questions of the mortgagor's title as against strangers to the mortgage who claim a superior title. ...

59 C.J.S. Mortgages § 550 (1998); see also 4 Richard R. Powell, Powell on Real Property § 37.37[7] (Michael Allan Wolf ed., Matthew Bender 20083) ("[Slenior interests cannot be affected by the foreclosurel[,] ... the rights of holders of paramount title ... are not within the scope of the action."). Consequently, a party with an interest superior to that of the mortgagee is not a necessary party in a foreclosure action. See Graham v. Oakden, 51 Utah 476, 170 P. 451, 452 (1917) ("It is a fundamental principle in proceedings to foreclose a mortgage that prior lienors or incumbrancers are not necessary parties to the proceedings."); see also Utah Code Ann. § 78-37-83 (2002) (addressing necessary parties in actions for mortgage foreclosure). Furthermore, "an action to determine adverse claims cannot be maintained against the holder of the legal title by one who has a mortgage lien." Fields v. Cobbey, 22 Utah 415, 62 P. 1020, 1021 (1900). Here, Park City Development's interest in the Marsac Lode was subsequent and inferior to that of New Park-Nevada. It is undisputed that New Park-Nevada owned the Marsac Lode pursuant to a recorded deed, prior to the time Park City Development purported to mortgage its unrecorded interest to International Smelting. - Therefore, International Smelting could not use its foreclosure action to extinguish New Park-Nevada's superior title to the property. Even if International Smelting had properly joined New Park-Nevada with the 1941 Foreclosure Action, the court in the 1941 Foreclosure Action could not have determined New Park-Nevada's interest in the Marsac Lode as it was not a party to the mortgage and had title that was superior to that of International Smelting. - Consequently, the trial court erred in determining that the 1941 Foreclosure Action foreclosed New Park-Nevada's interest in the Marsac Lode.

CONCLUSION

16 Mayflower's chain of title to the Mar-sac Lode is superior to that of the Dunlaps. The Dunlaps's claim is through an unrecorded transfer, which, by virtue of the recording act, is inferior to the recorded transfers by which Mayflower holds title to the property. Additionally, the 1941 Foreclosure Action did not affect New Parlk-Nevada's interest in the Marsac Lode because it was not properly joined as a party. Furthermore, the 1941 Foreclosure Action could not affect the interests of New Park-Nevada as it had recorded title to the property that was superior to that of the mortgagor, Park City Development. Therefore, the Dunlaps's chain of title is flawed, and Mayflower's chain of title is "established] by competent evidence." Music Serv. Corp. v. Walton, 20 Utah 2d 16, 432 P.2d 334, 336 (1967). Consequently, we reverse the decision of the trial court granting summary judgment to the Dunlaps. We remand for further proceedings consistent with this opinion.

T17 WE CONCUR: JAMES Z. DAVIS and GREGORY K. ORME, Judges.

      . The Marsac Lode consists of approximately five acres in the Flagstaff Mountain area of Summit County, Utah, described as Marsac Lode, Lot No. 61.

      . New Park-Utah and New Park-Nevada were incorporated within days of each other and the same individuals sat on both companies' board of directors.

      . There is no recorded deed from New Park-Nevada or any other person or entity to Park City Development for the Marsac Lode.

      . Through 1938 all taxes were assessed to New Park-Nevada and both parties admit that as of May 2, 1938, New Park-Nevada was the record owner of the Marsac Lode.

      . - Mayflower also appeals the trial court's conclusion that they are barred from asserting title by the doctrine of estoppel in pais. See Financial Corp. of Am. v. Prudential Carbon & Ribbon Co., 29 Utah 2d 238, 507 P.2d 1026, 1027 (1973) (" '[UJnder the doctrine or principle of estoppel in pais one may by his acts or conduct away from the court prevent himself from denying in court the effect or result of those acts."" (citation omitted)). The trial court's Findings of Fact include no findings relating to estoppel and the undisputed facts also do not support estoppel. Furthermore, estoppel is inconsistent with the trial court's determination that the Dunlaps had not established adverse possession or waiver. We therefore reverse the trial court's conclusion that Mayflower is estopped from claiming title.

      . - Utah Code Ann. § 57-3-103 (2000) states:
      Each document not recorded as provided in this title is void as against any subsequent purchaser of the same real property, or any portion of it, if:
      (1) the subsequent purchaser purchased the property in good faith and for a valuable consideration; and
      (2) the subsequent purchaser's document is first duly recorded.

      . The recording act and law of record priorities apply to mortgages as well as to deeds. See Federal Land Bank of Berkeley v. Pace, 87 Utah 156, 48 P.2d 480, 482 (1935).

      . The Dunlaps argue that New Park-Nevada had actual knowledge of the foreclosure action and did nothing to impede its progress. This argument is based on New Park-Nevada and New Park-Utah having the same individuals associated with both companies. Even if knowledge gave rise to some sort of affirmative duty, the argument is based on conjecture and not the extant record of the foreclosure action.


source: Caselaw Access Project

author: THORNE, Judge:

license: Public Domain

text:
    2003 UT App 282
    Jeanny Louise DAVIS, Petitioner and Appellee, v. Johnny Mack DAVIS, Respondent and Appellant.
    No. 20020086-CA.
    Court of Appeals of Utah.
    Aug. 7, 2003.

      James H. Woodall, Suzanne Marelius, Salt Lake City, for Appellant.
    Rosemond G. Blakelock, Blakelock & Stringer PA, Provo, for Appellee.
    Before BILLINGS, Associate P.J., and ORME and THORNE, JJ.
   OPINION

THORNE, Judge:

\ 1 Johnny Mack Davis (Husband) appeals from the trial court's divorcee order. We affirm.

BACKGROUND

12 After thirty-five years of marriage, Jeanny Louise Davis (Wife) filed for divorcee from her husband. The parties were unable to agree upon a property settlement and requested that the trial court bifurcate the divorce. The trial court dissolved the marriage and conducted a separate trial to determine the division of property. Prior to trial, the parties stipulated to the division of some of the property, but asked the trial court to rule on the issues of (1) alimony, (2) division of retirement assets, and (8) attorney fees. Following the motion, the trial court awarded Wife $1,000 per month in alimony, $2,500 in attorney fees, and allowed her to retain sole possession of $51,000 in her Federal Retirement Thrift Savings Account. Husband appealed.

13 We reversed and remanded the matter directing the trial court to address the seven factors set forth in Utah Code Annotated section 30-8-5(7)(a) (1998) prior to dividing the property. We further directed the trial court to "'move beyond merely considering [the parties'] incomes and inquire more fully into their financial situations."" Davis v. Davis, 2001 UT App 327U, 2001 WL 1340747 (Davis I) (quoting Williamson v. Williamson, 1999 UT App 219,¶ 11, 983 P.2d 1103). We also reversed the trial court's division of retirement assets, stating "[aln equitable division of marital property is not purely an independent determination, but must be made in light of the alimony, if any, that is awarded." Id. We also reversed the attorney fee award and remanded "for a determination of attorney fees that is supported by detailed factual findings." Id.

T4 In its revised order on remand, the trial court, among other things, found that Wife was entitled to $1,000 per month in alimony for the next ten years. The trial court supported its alimony award with findings that Wife had not worked the majority of the thirty-five year marriage, that she was currently employed as a clerk-typist earning approximately $1,370 per month, and that her monthly expenses equaled $2,100. The trial court concluded that Wife's employment opportunities were limited, that Husband had been the primary financial provider in the marriage, and that Husband could afford to pay alimony because he earned approximately $4,500 per month and only had monthly expenses of $3,000. The trial court also reasoned that Wife had enjoyed a higher standard of living before the divorce and that alimony was needed to mitigate this disparity.

15 The trial court ordered the parties to retain their respective retirement and pension plans and stated that any "perceived disparity ... is attributed ... to [Husband's] present and future ability to ensure himself an adequate retirement versus [Wife's] inability to do the same." The court awarded the farm to Husband, which could be sold and the proceeds used to "further ensure an adequate retirement." The court also took into account that Wife had made $8,040 in payments on the farm even though it was ultimately awarded to Husband and that she had incurred "upkeep expenses during the parties' separation ... totaling $8,257" and that Husband had not contributed to meeting those expenses. - Additionally, the court found that "[Husband] has depleted his retirement accounts in contravention of this Court's order."

1 6 Husband appeals.

ISSUES AND STANDARDS OF REVIEW

T7 Husband argues that the trial court exceeded its permitted range of discretion by awarding Wife $1,000 per month in alimony. " Trial courts have considerable discretion in determining alimony ... and [determinations of alimony] will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.'" Breinholt v. Breinholt, 905 P.2d 877, 879 (Utah App.1995) (alteration in original) (quoting Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct.App.1991)). "We review a trial court's conclusion of law with respect to alimony awards for correctness, according no deference to the trial court." Id. "If, however, we are charged with the task of reviewing the trial court's findings of fact, we will reverse only if the findings are clearly erroneous." Id.

Husband next claims that the trial court inequitably divided the retirement assets.

"We afford the trial court 'considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity' - Accordingly, changes will be made in a trial court's property division determination in a divoree action 'only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderated against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion. "

Bradford v. Bradford, 1999 UT App 373, ¶ 25, 993 P.2d 887 (quoting Thomas v. Thomas, 1999 UT App 239, ¶ 16, 987 P.2d 603 (other citations omitted)).

19 Husband also claims that the trial court erroneously awarded Wife $2,500 in attorney fees. "[The decision to grant or deny attorney fees is 'within the trial court's sound discretion.'" Shinkoskey v. Shinkoskey, 2001 UT App 44,¶ 5, 19 P.3d 1005 (quoting Munns v. Munns, 790 P.2d 116, 123 (Utah Ct.App.1990)).

ANALYSIS

I. Alimony Award

Husband argues that the trial court exceeded its permitted range of discretion by awarding Wife $1,000 in monthly alimony. In support of his position, Husband claims that the trial court miscalculated Wife's income as well as her monthly expenses and thereby challenges these factual findings.

When challenging a finding, Appellant "must first marshal all [of] the evidence that supports the finding and then demonstrate that despite this evidence the finding is so lacking in support as to be 'against the clear weight of the evidence."" The marshaling requirement is a prerequisite to our examination of the finding. " 'If the appellant fails to marshal the evidence, the appellate court assumes that the record supports the finding[ ] of the trial court. ...'"

Wilde v. Wilde, 2001 UT App 318,¶ 29, 35 P.3d 341 (alterations in original) (citations omitted). Here, however, Husband simply reargues the evidence he presented at trial, and he ignores the factual support for the trial court's decision to award Wife $1,000 in monthly alimony. Consequently, we conclude Husband has failed to meet his mar-shalling obligation and, thus, we assume the record supports the trial court's finding. See id.

II. Retirement Accounts

T11 Retirement accounts are part of the marital estate and they are generally to be equitably divided. See Dunn v. Dunn, 802 P.2d 1314, 1319 (Utah Ct.App.1990) (noting that "Tilt is well settled that ... retirement accounts accrued during the marriage, are marital assets and, whenever possible, should be equitably divided"). Thus, "[an unequal division of marital property ... is only justified when the trial court 'memorializes in commendably detailed findings' the exceptional cireumstances supporting the distribution." Bradford v. Bradford, 1999 UT App 373,¶ 27, 993 P.2d 887 (citation omitted).

112 Here, the trial court found that each party was to "retain the retirement and pension accounts in his or her name." The court explained that "[alny perceived disparity in the pension distribution is attributed ... to [Husband's] present and future ability to ensure himself an adequate retirement versus [Wife's] inability to do the same." The court reasoned that "[Wife]l bas a limited earning potential [and thus,] is more dependant [than Husband] upon the retirement account." Moreover, Wife had made over $8,000 in payments on the farm during the divorce and over $8,000 in maintaining the family home during the two-year divorce proceeding while Husband had not contributed toward these marital obligations. The court also acknowledged that Husband was awarded the farm and could liquidate that property and "use those proceeds to further ensure an adequate retirement." Finally, the court noted that Husband "depleted his retirement accounts in contravention of this court's order."

13 We conclude that the trial court made sufficient factual findings to support its conclusion that there were "exceptional cireum-stances" warranting a seemingly unequal distribution of the parties' retirement accounts. See Bradford, 1999 UT App 373 at ¶ 27, 993 P.2d 887. Accordingly, the trial court did not exceed its permitted range of discretion when it divided the parties' retirement accounts. Husband's claim that the trial court abused its discretion is without merit.

III. Attorney Fees

114 Finally, Husband argues that the trial court abused its discretion in awarding Wife $2,500 in attorney fees. "A trial court may award attorney fees and costs in divorcee proceedings." Utah Code Ann. § 30-3-3 (Supp.2002); see Shinkoskey v. Shinkoskey, 2001 UT App 44,¶ 19, 19 P.3d 1005. "'The decision to award attorney fees and the amount thereof rests primarily in the sound discretion of the trial court. However, the trial court must base the award on evi-denee of the receiving spouse's financial need, the payor spouse's ability to pay, and the reasonableness of the requested fees'" Shinkoskey, 2001 UT App 44 at ¶ 19, 19 P.3d 1005 (citations omitted). Thus, "'an [attorney fee} award must be based on sufficient findings, " and the failure to make such findings "'requires remand for more detailed findings by the trial court'" Id. (citations omitted).

115 Here, the trial court found that the amount of the attorney fees was reasonable, given the length of the litigation and the numerous documents filed; that Husband had the ability to pay these fees, given a monthly income in excess of $4,500; and that Wife demonstrated a need to have some assistance with payment of her attorney fees given that her monthly expenses exceeded her income by over $700. These factual findings, while not extremely detailed, are sufficient to support the award of attorney fees and the trial court did not exceed its permitted range of discretion in making this award.

CONCLUSION

116 We affirm the trial court's order. Husband failed to properly marshall the evidence; thus, we presume that the findings are supported by the evidence. The trial court made sufficient factual findings demonstrating that exceptional cireumstances existed warranting the unequal distribution of the parties' retirement accounts. Finally, the trial court did not exceed its permitted range of discretion when it awarded Wife attorney fees, because there was evidence to support its finding of Wife's need, Husband's ability to pay, and that the fees were reasonable.

T 17 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and GREGORY K. ORME, Judge.

      . - Husband also argues that the trial court abused its discretion when it considered fault in awarding alimony and in dividing the marital assets. Rule 24(a)(9) of the Utah Rules of Appellate Procedure requires parties to include in their briefs "citation to authorities, statutes, and part of the record relied on." The portion of Husband's brief challenging the trial court's use of fault in determining alimony and distribution of property does not adequately set forth an argument as required by rule 24(a)(9). See Utah R.App. P. 24(a)(9). We could decline to address this issue on this ground, see, e.g., MacKay v. Hardy, 973 P.2d 941, 947-48 (Utah 1998) (noting that "rules of appellate procedure clearly set forth the requirements that appellants and appel-lees must meet when submitting briefs before this court"), however, because we can easily dispose of the argument, we do so here.
      It is well-established that "a trial court must consider many factors in making a property settlement in a divorce proceeding, but that the purpose of the settlement should not be to impose punishment on either party." Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980). However, just because a trial court mentions fault in making a property settlement does not mean that a party was, in fact, punished by a property settlement. See id. Here, the trial court's findings, excluding those relating to fault, are sufficient to support the alimony award and the property settlement. Hence, Husband was not "punished" by the trial court,. Furthermore, Utah Code Annotated section 30-3-5(7)(b) allows the trier of fact to consider fault when awarding alimony. See Utah Code Ann. § 30-3-5(7)(b) (Supp.2002)....

      . Husband argues that Wife's monthly income should be increased because Wife voluntarily contributes $227.41 each month toward her retirement. - Husband further argues that Wife's monthly expenses should have been reduced because Wife's financial declaration erroneously included a $355.00 per month car loan payment. Taken together, these amounts could reduce Wife's alimony award by over $550.00 per month.

      . For example, Wife testified that a portion of her monthly paycheck was saved for retirement. While the trial court could have considered this amount as income, see Griffith v. Griffith, 1999 UT 78,¶ 19, 985 P.2d 255 (noting that "trial courts have broad discretion in selecting an appropriate method of assessing a spouse's income"), the court did not exceed its permitted range of discretion in choosing not to do so. Wife testified that she had only worked twelve years of the thirty-five year marriage as a clerk» typist and the trial court found that Husband was more employable than Wife. Consequently, Wife contributed to her retirement for a shorter amount of time than Husband and has a lower earning potential than him. In light of this evidence, it was not an abuse of discretion to allow Wife to continue to contribute to her retirement and withhold this amount from the income calculation.
      Additionally, the trial court found Wife's monthly expenses to be $2,100. Wife admitted that she erroneously included a $355 per month payment for the farm, an item awarded to Husband, in her expense calculations. However, Wife testified that the car she drove at the time of trial had high milage and would need to be replaced soon. She asked the court to consider the monthly $355 payment as a reasonable car payment. - In light of this evidence, it was not an abuse of discretion to include a future car payment in Wife's monthly expenses.

      . In fact, it is not clear from the record that the distribution was "unequal." The trial court found that Husband depleted his retirement accounts; however, the findings do not reflect the amounts contained in those accounts prior to their depletion.


author: HILL, Chief J.

text:
    2003 WY 107
    Ronald Gene COSSETTE, Appellant (Defendant), v. Kathryn Mary COSSETTE, Appellee (Plaintiff).
    No. 02-183.
    Supreme Court of Wyoming.
    Sept. 5, 2003.

      Representing Appellant: DaNece Day Koe-nigs of Lubnau, Bailey & Dumbrill, P.C., Gillette, Wyoming.
    Representing Appellee: Dwight F. Hurich of Hurich Law Office, Gillette, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief J.

[T1] Ronald Gene Cossette (Father) appeals the district court's denial of his Petition to Terminate Child Support. Pursuant to Wyo. Stat. Ann. § 14-2-204(a)(iii) and the Divorcee Decree, Father was required to pay child support for the parties' minor daughter (Daughter) until the age of majority or until she turned twenty years old so long as she was a full-time participant in a high school or equivalent program. Father contended that Daughter's repeated absences from and consequent dismissal from high school after she had reached the age of majority terminated his obligation to make child support payments. The district court concluded that Daughter's sporadic attendance did not negate the fact that she was enrolled in high school as a full-time student, and that her subsequent dismissal did not warrant termination of her support payments since she had enrolled in an alternative educational program for the forthcoming year. Accordingly, the district court denied Father's petition.

[1 2] We affirm.

ISSUES

[T 3] Father raises two issues in his appeal:

A. Did the trial court commit reversible error by failing to apply the plain language of the Divorcee Decree and W.S. § 14-2-204 which require full-time school attendance for a child over the age of 18 to receive child support?
B. Is [Father] entitled to his fees for this appeal as a matter of law?

Kathryn Mary Cossette (Mother) responds with a single statement of the issue:

Did the district court err when the court determined the Father's child support obligation should not terminate under the terms of the parties' divorce decree?

FACTS

[T4] The parties were divorced in December of 1999. Daughter was their only child, and the decree of divoree provided that Father was to make monthly child support payments under the following conditions:

IT IS FURTHER ORDERED that during any child's minority (until age eighteen) and beyond for any child who has a mental, emotional, or physical impairment preventing emancipation and while any child between the ages of eighteen (18) and twenty (20) is attending high school or an equivalent program as a full-time student, the non-custodial parent shall contribute to that child's support. [Emphasis supplied.]

On April 16, 2002, Father filed a Petition to Terminate Child Support. Father alleged that since attaining her eighteenth birthday on November 8, 2001, Daughter had not attended high school or an equivalent program on a full-time basis.

[T5] On May 29, 2002, the district court held a hearing on Father's petition. The first witness was the secretary from West-wood High School responsible for student records. She testified that during the first quarter of the 2001-02 school year, Daughter's attendance was sufficient for her to be considered a full-time student. In the see-ond quarter of the school year, however, Daughter's attendance declined to the point where the school no longer considered her a full-time student. In response, the school required Daughter to enter into a two-week "contract" that mandated attendance in the absence of any doctor's exeuse. The witness testified that Daughter was unable to comply with the contract so the school ordered her to withdraw.

[16] Father was the next witness. He testified that he had concerns over Daughter's poor grades. Father talked to Daughter about her grades, but he acknowledged that he did not discuss her attendance problems with her or Mother. Unsatisfied with Daughter's efforts to improve her grades, Father took away her car. Father had not had any contact with Daughter since then.

[17] Mother testified that Daughter's absences were related to health problems. Daughter was diagnosed with depression and suffered from a variety of physical ailments including thyroid problems. Daughter was under the medical care of a doctor and had been prescribed medication for her problems. Mother indicated that after Daughter was dismissed from Westwood High School, she immediately enrolled in an alternative school in Spearfish, South Dakota. According to Mother, Daughter planned to take classes during the summer so that she could complete her high school education by the end of the fall of 2002.

[18] The final witness at the hearing was Daughter. She testified that her absences were related to her various ailments. She confirmed the testimony from her mother that she had enrolled in the Spearfish high school, planned to take summer classes, and complete her education that fall Daughter also admitted that she had not informed her father about the depression diagnosis or her other medical issues because of her strained relationship with him.

[19] After the hearing, the district court denied Father's petition to terminate child support. The court found that although Daughter's attendance was poor, the school considered her a full-time student and she had made an effort to be present. The court noted Daughter's efforts to remain in school and obtain her degree. It concluded that this was sufficient for her to be considered a full-time student and that continued support was appropriate. Father has appealed.

STANDARD OF REVIEW

[T10] Decisions related to child support are assigned to the sound discretion of the district court. Jordan v. Brackin, 992 P.2d 1096, 1098 (Wyo.1999). We will not disturb a district court's ruling unless we are convinced that the court has abused its discretion. Id.

In determining whether there has been an abuse of discretion, we focus on the "reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the cireumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious. Id. (citing Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985)); [(Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995)) ].

Jordan, 992 P.2d at 1098-99.

DISCUSSION

[T11] The provision in the parties' divorce decree requiring Father to pay child support past his daughter's age of majority so long as she was pursuing her high school diploma has a statutory basis:

(a) Any person legally responsible for the support of a child who abandons, deserts, neglects or unjustifiably fails to support the child is liable for support of the child. It is no defense that the child was not or is not in destitute cirenmstances. For purposes of this section, a parent's legal obligation for the support of his or her children, whether natural or adopted, continues past the age of majority in cases where the children are:
(ii) Between the age of majority and twenty (20) years and attending high sehool or an equivalent program as full-time participants.

Wyo. Stat. Ann. § 14-2-204(a)(iii) (LexisNex-is 2008). The crux of the parties' dispute is whether or not Daughter was attending high school as a full-time participant or student.

[112] The interpretation of a statute is a question of law. In interpreting a statute:

We endeavor to interpret statutes in accordance with the Legislature's intent. We begin by making an " 'inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection! " Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia.

Wyodak Resources Development Corporation v. Board of Equalization, 2001 WY 92, ¶ 7, 32 P.3d 1056, ¶ 7 (Wyo.2001) (quoting Exxon Corporation v. Board of County Commissioners, Sublette County, 987 P.2d 158, 161-62 (Wyo.1999)).

[1183] The legislative intent behind Wyo. Stat. Ann. § 14-2-204(a2)(@ii) is apparent on the face of the statute. The statute's purpose is to ensure the financial security of a child while she is pursuing a high school diploma. The statute results from recognition by the Legislature of the importance of a basic education in our society. The Legislature, however, imposed two limitations in the statute: (1) the support ends when the child reaches twenty years of age; and, (2) the child must be attending a high school or equivalent program as a full-time participant. The second limitation, of course, is the only concern before us in this case.

[T 14] Father contends that Daughter was not "attending" high school as a "full-time participant" in light of her absences. Father argues that "attending" means the actual presence of the child in class. Father's position is that the Legislature meant that there must be some level of physical presence by the child in school beyond their enrollment. Mother counters that Father is seeking to equate the term "attending" with the concept of "perfect attendance," a standard that would be impossible to meet. Instead, Mother suggests that "attending" refers to the child's status in the school, i.e., whether she is enrolled as a full-time student and considered as such under the school's standards.

[11,12] [T15] The meaning of the term "attending" must be ascertained within the context of the legislative intent behind the statute. We think the term is neither so narrow as suggested by Father nor so broad as urged by Mother. At a minimum, the term must include enrollment as a full-time student. This requirement is specified by the Legislature's use of the term "full-time participants." Since the purpose of the statute is to ensure the continued financial support of the child in the pursuit of a high school education, the duty imposed upon the supporting parent must be matched by a concomitant duty on the part of the student to diligently pursue that goal. Nevertheless, we agree with Mother that "perfect attendance" is not realistic. However, the child's duty to pursue the goal of the statute imposes a responsibility to attend class. The question is, where is the line to be drawn between "perfect attendance" and "enrollment"? The answer, we believe, cannot be drawn with exact specificity. Each case must be determined on its particular factual situation. There are various factors that should be considered when determining if a child is "attending" school as a full-time participant, including: (1) the reasons for any absences and the degree to which they were within the control of the child; and (2) what actions, if any, are taken by the child to continue the pursuit of an education.

[T 16] In this case, Daughter and Mother testified that Daughter's absences from school were the product of her various health issues. Within a month of Daughter's dismissal from Westwood High School, she had enrolled in an alternative program at a school in Spearfish, South Dakota. Daughter indicated her intent to take classes during the summer so that she could complete her degree at the conclusion of the fall semester. Neither Father nor any other witness at the hearing contradicted this testimony. Thus, the evidence indicates that Daughter's absences were due to factors beyond her control. Daughter and Mother testified that she sought treatment for her various medical conditions; nevertheless, the nature of those ailments made it difficult for her to attend school - regularly. _ Furthermore, - when Daughter's absences caused her dismissal from the high school, she took immediate remedial action by enrolling less than a month later in an alternative program at another school. Depriving a child of support because she was unable to attend school on a regular basis because of a temporary medical condition is not consistent with the legislative intent behind the statute. This is especially true where, as here, the child clearly exhibits intent to complete her education by taking steps to ensure her continued enrollment in school. Under these cireumstances, we cannot say that the district court abused its discretion in finding that the Daughter was a full-time participant in a high school or equivalent program and, accordingly, denying Father's motion to terminate his support payments.

[T17] Father requests that this Court award him attorney's fees pursuant to the divorce decree, which imposes attorney's fees, costs, and expenses on either party if they fail to perform any duty or obligation imposed by the terms of the decree. Father did not raise this claim before the district court. We do not review claims raised for the first time on appeal. In re Pohl, 980 P.2d 816, 819 (Wyo.1999).

CONCLUSION

[118] The district court's order denying Father's motion to terminate support is affirmed.


author: HILL, Chief Justice.

text:
    2003 WY 110
    Dwayne Lee JOHNSON and Arlene Rae Johnson, husband and wife, Appellants (Defendants), v. David C. CREAGER, Appellee (Plaintiff).
    No. 02-204.
    Supreme Court of Wyoming.
    Sept. 8, 2003.

      Representing Appellants: Stacey E. Cas-per of Clapp and Associates, P.C., Casper, Wyoming.
    Representing Appellee: Jerry A. Yaap of Bishop, Bishop & Yaap, Casper, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¥1] Appellants, Dwayne and Arlene Johnson (Johnsons), seek review of the district court's order granting summary judgment in favor of Appellee, David Creager (Creager). The Johnsons bought a mobile home from Creager and, after they failed to make the required payments in a timely manner, Creager filed a complaint for replev-in. Creager then filed a motion for summary judgment with a supporting affidavit. The Johnsons filed an untimely response to Creager's evidentiary materials, and the district court struck the response because it was filed late. The district court then found that there were no genuine issues of material fact, because there was no evidence to contradict Creager's affidavit, and that Creager was entitled to judgment as a matter of law. We will affirm.

ISSUES

[12] The Johnsons pose these issues:

I. Whether the district court erred in granting [Creager's] motion for summary judgment.
A. Whether the transaction in question is governed by the Uniform Commercial Code, Article 9, Secured Transactions.
B. Whether equitable doctrines preclude [Creager] from entitlement to repossession.

Creager's summary of the issues is tersely stated as: "Whether the [district] court erred in granting [Creager's] motion for summary judgment."

FACTS

[13] On August 7, 2000, the Johnsons bought a used mobile home from Creager. The transaction was recorded on what was entitled, "A Plain Language Purchase Agreement." The base price was $10,000.00, with the Johnsons making a $2,000.00 down payment. The agreement contained a notation that a "new water heater to be taken out of 1st payment-receipt to equal 500.00." Continuing, the agreement provided:

Terms are $2,000.00 down and 500.00 every other Friday starting 9-1-00 until the amount of $10,000 is fulfilled (if all payments are on time-[through] 3-29-01). No interest providing all payments are made on time. Payments are considered late as of Sunday following the due date at close of business for Oak Creek Village (5:00 pm.). [If] Ist time payment is late interest goes to 21% on full original amount of loan (602.66 in interest). 2nd late payment home will be repossessed. Neither Dave Creager or Oak Creek Village implies or will stand behind any warranties for this home. Sale of home is as is where is-deposit is non-refundable at time of signing contract. Full $2,000.00 down in order to move home off our lot.
Title will remain in name of Dave Creager until full amount is paid off, Home shall remain at Blair Ln. -if it is to be moved notice in writing must be given to Dave Creager 30 days in advance for his approval or denial. $10,000 is as is where is. Customer is responsible for move and setting of home.

[T4] - On January 17, 2002, Creager filed a "Complaint for Replevin" in the district court alleging that the Johnsons had not made timely payments on the mobile home and seeking its return, as well as other damages and costs. On February 8, 2002, the John-sons filed an answer and counterclaims. Their answer, as well as Creager's pleadings, established that, in addition to the $2,000.00 down payment, the Johnsons made various payments under the contract totaling $5,000.00, albeit not always within the time lines articulated in the contract. The John-sons' affidavits asserted that all payments were made in accordance with Creager's directions, or that Creager acquiesced in the late payments, but that is not a part of the record on appeal. In addition, the Johnsons contended that Creager had breached an oral warranty to the effect that the trailer was "in working order." On May 8, 2002, Creager filed a motion for summary judgment with the affidavit of Creager attached. The affidavit recited the contract set out above, as well as the facts pertaining to the Johnsong' failure to make timely payments and that Creager was, therefore, entitled to a writ of replevin to regain possession of the mobile home. The motion for summary judgment was set for a hearing, to be held on July 10, 2002. On July 8, 2002, the Johnsons filed their brief in opposition to the motion for summary judgment, to which was attached the affidavits of the Johnsons contending that they had not breached the contract but that Creager had.

[15] The Wyoming Rules of Civil procedure provide:

Rule 56. - Summary Judgment.
(a) For claimant.-A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.
(b) For defending party.-A - party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.
(c) Motion and proceedings therson.-Unless the court otherwise orders, the motion and any response and other papers relating thereto shall be served pursuant to Rule 6(c). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of Hability alone although there is a genuine issue as to the amount of damages.
(d) Case not fully adjudicated on motion. -If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(e) Form of offidavits; further testimony; Defense required.-Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
(£) When affidavits are unavailable-Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(g) Affidavits made in bad faith-Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt. Rule 6. Time.
(c) Motions and Motion Practice.-
(1) Unless these rules or an order of the court establish time limitations other than those contained herein, all motions, except (A) motions for enlargement of time, (B) motions made during hearing or trial, (C) motions which may be heard ex parte, and (D) motions described in subdivisions (3) and (4) below, together with supporting affidavits, if any, shall be served at least 10 days before the hearing on the motion. Except as otherwise provided in Rule 59(c), or unless the court by order permits service at some other time, a party affected by the motion shall serve a response, if any, together with affidavits, if any, at least three days prior to the hearing on the motion or within 20 days after service of the motion, whichever is earlier. Unless the court by order permits service at some other time, the moving party shall serve a reply, if any, at least one day prior to the hearing on the motion or within 15 days after service of the response, whichever is earlier. Unless the court otherwise orders, any party may serve supplemental memoranda or rebuttal affidavits at least one day prior to the hearing on the motion.

(Emphasis added.)

[16] The Johnsons' papers resisting the motion for summary judgment were not filed in a timely manner under the above-quoted rules. As a result, Creager filed a motion to strike that pleading, and the district granted the motion. The district court then proceeded to hear argument on the motion for summary judgment, leaving out of consideration the Johnsons' evidentiary materials and only considering Creager's evi-dentiary materials. A district court does not abuse its discretion when it refuses to accept out-of-time affidavits. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure Civil 3d § 2719, at 321-22, n. 22 (1998).

[17] As the initial part of his argument below, Creager challenged the Johnsonsg' claim that Creager had given an express warranty as to the condition of the trailer by telling them it was "in working order". Creager's position in this regard relied on Wyo. Stat. Ann. § 34.1-2-816(c) (LexisNexis 2008). Creager contended that the written contract was clear that the mobile home was sold "as is, where is." The cited statute provides:

§ 34.1-2-316. Exclusion or modification of warranties.
(a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence (section 34.1-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
(b) Subject to subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the de-seription on the face hereof."
(c) Notwithstanding subsection (b) of this section:
(i) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as ° is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and
(ii) When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
(if) An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade; and
(iv) The implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from an individual or a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purpose of this article be considered commodities subject to sale or barter, but shall be considered as medical services.
(v) With respect to the sale of cattle, hogs, sheep and horses, there shall be no implied warranty that the cattle, hogs, sheep and horses are free from disease.
(d) Remedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (sections 34.1-2-718 and 84.1-2-719).

(Emphasis added.) With respect to all other matters at issue, Creager simply maintained that the only evidentiary material before the district court was entirely favorable to Creager's complaint, that there were no genuine issues of material fact, and that he was entitled to judgment as a matter of law.

[18] Countering this approach, the John-sons contended that, even in the absence of their evidentiary materials, Creager was not entitled to judgment as a matter of law. It was their view that Creager could not, or had not, properly proceeded under the statutes governing replevin (Wyo. Stat. Ann. §§ 1-15-301 through -306 (LexisNexis 2008)) and, further, that this matter was one governed by Article 9 of the Uniform Commercial Code-Secured Transactions (Wyo. Stat. Ann. §§ 34.1-9-101 through -709 (LEXIS 1999). Continuing, the Johnsons contended that even accepting Creager's entire affidavit as true, he was not entitled to repossess the trailer, keep all of their $7,000.00 in payments, and collect other damages.

[T9] Looking only to the contract itself and Creager's affidavit, the district court determined that there were no genuine issues of material fact. It also determined that replevin was an appropriate remedy in these cireumstances and, although there had been some delay in Creager filing his action for replevin, neither laches nor waiver applied in these cireumstances. Thus, the district court returned the mobile home to Creager's possession, but did not award any further damages.

STANDARD OF REVIEW

[110] When we review a summary judgment, we have before us the same materials as did the district court, and we follow the same standards which applied to the proceedings below. The propriety of granting a motion for summary judgment depends upon the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. Reed v. Miles Land and Livestock Company, 2001 WY 16, ¶ 9, 18 P.3d 1161, ¶ 9 (Wyo.2001). A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. We, of course, examine the record from a vantage point most favorable to that party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record. Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (Wyo.2001); Central Wyoming Medical Laboratory, LLC v. Medical Testing Lab, Inc., 2002 WY 47, ¶ 15, 43 P.3d 121, ¶ 15 (Wyo.2002).

DISCUSSION

[T11] The Johnsons take the position that replevin was not an available remedy under the cireumstances of this case and that the only correct source of law to resolve this case is found in the Uniform Commercial Code (UCC). We note at the outset that that view was not articulated to the district court during the proceedings below. Moreover, we are unable to agree with that foundational proposition. The UCC is not intended to supplant remedies such as re-plevin. - Rather it serves to supplement them. Wyo. Stat. Ann. § 84.1-1-103 (Lexis-Nexis 2008) provides:

§ 34.1-1-103. Supplementary general principles of law applicable.
Unless displaced by the particular provisions of this act [§§ 34.1-1-101 through 34.1-10-104], the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.

In the annotation to that statute, one of the purposes of the enactment is stated to be: "The listing given in this section is merely illustrative; no listing could be exhaustive. Nor is the fact that in some sections particular cireumstances have led to express reference to other fields of law intended at any time to suggest the negation of the general application of the principles of this section." We have specifically held that the law of replevin has not been displaced by the UCC. Brown v. Green, 618 P.2d 140, 144 (Wyo.1980); and see Comer v. Green Tree Acceptance, Inc., 858 P.2d 560, 562-64 (Wyo.1993); and James J. White and Robert S. Summers, Uniform Commercial Code, § 25-8, at 898-99 (5th ed. 2000) ("A secured party, wishing to repossess by judicial action, has several means available. For instance, it can bring an action in replevin, originally a common-law action, now largely codified."). However, that does not necessarily mean that the UCC does not apply to some facets of a case such as this.

[T12] The Johnsons call our attention to Wyo. Stat. Ann. § 34.1-9-102 (LEXIS 1999) which provided:

(a) Except as otherwise provided in seetion 34.1-9-104 on excluded transactions, this article applies:
() To any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper or accounts; and also
(ii) To any sale of accounts or chattel paper.
(b) This article applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor's lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract and lease or consignment intended as security. This article does not apply to statutory liens except as provided in section 34.1-9-810.
(c) The application of this article to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this article does not apply.

The Johnsons further assert that the sale at issue here is governed by the UCC's provisions with respect to secured transactions and, because the Johnsons had paid more than 60% of the cash price, Creager was required to sell the mobile home and repay to them any surplus generated by that sale. Wyo. Stat. Ann. §§ 34.1-9-504 and 505 (LEXIS 1999). 4 James J. White and Robert S. Summers, Uniform Commercial Code, § 34-9, at 425-29, n. 9 (4th ed.1995).

A careful review of the record on appeal reveals that this argument was not presented in the district court and so is of no force here with respect to our review of the district court's order granting the writ of replevin. Thus, we are compelled to conclude that the district court correctly determined that there were no genuine issues of material fact because, in effect, the Johnsons had no facts available to them that disputed any of the evidentiary material brought forward by Creager with respect to the replevin action. However, in resolving this appeal, we only affirm the trial court's order granting the writ of replevin. The district court did not purport to resolve issues with respect to disposition of the collateral after repossession had been accomplished. At the time this appeal was initiated, the 90-day period in which Creager would have been required to dispose of the trailer had not yet expired. Wyo. Stat. Ann. § 34.1-9-505(a) (LEXIS 1999). Therefore, our disposition of the instant appeal has no effect with respect to Creager's obligations in that regard.

[114] We will make only brief mention of the Johnsons' claims that laches and waiver should have been applied by the district court to invalidate Creager's right to repossess the mobile home. These arguments are not supported by facts of record, nor are they supported by cogent argument or pertinent authority and we decline to address them further. Walton v. State ex rel. Wood, 2002 WY 108, ¶ 11, 50 P.3d 693, ¶ 11 (Wyo.2002).

CONCLUSION

[115] The district court's order on summary judgment is affirmed.

      . Although this case was considered under the version of the Uniform Commercial Code in effect at the time this matter arose, our citations will be to the current version if both are identical.