author: LEHMAN, Justice.

text:
    2002 WY 123
    H.R. WAGSTAFF and Evelyn Wagstaff, Appellants (Petitioners), v. SUBLETTE COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee (Respondent), and Grindstone Cattle Company, Appellee (Intervener/Respondent).
    No. 01-81.
    Supreme Court of Wyoming.
    Aug. 20, 2002.

      James K. Lubing of James K. Lubing Law Office, Jackson, WY, Representing Appellants.
    Dale Aronson, Sublette County Attorney, Pinedale, WY, Representing Appellee Sub-lette County Bd. of County Comm'rs.
    Sharon M. Rose of Lavery & Rose, P.C., Evanston, WY, Representing Appellee Grindstone Cattle Co.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] We review the actions of appellee, Sublette County Board of County Commissioners ("Board"), establishing a private road and assessing damages. We reverse and remand for an amended determination on damages, but otherwise affirm.

ISSUES

[¶ 2] Appellants, HR. Wagstaff and Evelyn Wagstaff ("Wagstaffs"), set forth the following issues:

1. The Sublette County Board of County Commissioners' order granting a private road was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law since the "Scott's Place" property has an outlet to, and connection with, a public road.
2. The Sublette County Board of County Commissioners' order amending the viewers' report as to the road width was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, and otherwise not in accordance with law.
3. The Sublette County Board of County Commissioners' $10,000 damage assessment and analysis of damages generally was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, and otherwise not in accordance with law.

FACTS

[¶ 3] Grindstone Cattle Company ("GCC") owns a piece of real property which is commonly known as "Scott's Place" and another parcel of real estate which is north and west of Scott's Place and is separated from Scott's Place by a strip of land owned by the State of Wyoming and the Bureau of Land Management ("BLM"). Wagstaffs own real property that adjoins Seott's Place to the south. A title search established there are no easements or rights of way of record evidencing any legally enforceable access to Scott's Place. While State Route 354 runs through Wagstaffs' property, it does not run through Scott's Place. For over fifty years, GCC and its predecessors have had permissive use of a mile long roadway traversing Wagstaffs' land to access their property from State Route 354.

[¶ 4] In June 1998, pursuant to Wyo. Stat. Ann. §§ 24-9-101 through -108 (Lexis 1999), GCC filed a petition with the Board to establish a thirty foot wide private road along the existing road on the Wagstaff property. At a September 15, 1998 hearing, the Board appointed viewers and appraisers. In the ensuing report, the viewers and appraisers recommended the private road be located along the existing mile long roadway, limiting the width of a portion of that private road to twenty feet. They assessed damages in the amount of $50,000.00.

[¶ 5] On March 2, 1999, the Board held a hearing on the report and received testimony from two of the viewers and two other witnesses. One of the witnesses, a contractor, assessed the increased cost for the Wagstaffs to maintain an existing irrigation ditch adjacent to and encroaching into the roadway at $20,000.00. Another witness, an appraiser, assessed a $16,682.00 damage estimate related to the devaluation of Wagstaffs' property and the loss of land under the easement. Finally, the viewers' testimony established that the $50,000.00 damage estimate contained within their report was not performed using a "before and after" analysis.

[¶ 6] The Board again met on March 16, 1999, to consider those issues presented by the petition for the private road. Ultimately the Board, in its Order Amending and Adopting Viewers Report and Conditional Declaration of Private Road, ordered that the established private road be at a width of thirty feet over the entirety of the length along the existing road and assessed damages in the amount of $10,000.00. Wagstaffs filed a Petition for Review before the district court, which affirmed the Board's action. Wag-staffs now appeal that decision.

STANDARD OF REVIEW

[T7] We review the administrative order issued by the Board as if it had come directly to this court from the Board. Dunning v. Ankney, 936 P.2d 61, 63 (Wyo.1997) (citing State ex rel. Workers' Compensation Div. v. Fisher, 914 P.2d 1224, 1226 (Wyo.1996)). We examine the entire record to determine whether substantial evidence supports the administrative agency's findings of fact. We may not substitute our judgment for that of the ageney when substantial evidence supports its decision. Dunning, at 63 (citing Celotex Corp. v. Andren, 917 P.2d 178, 180 (Wyo.1996)). "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions." Dunning, at 63 (quoting Latimer v. Rissler & McMurry Co., 902 P.2d 406, 709 (Wyo.1995)). We do not, however, defer to an agency's conclusions of law. If the correct rule of law has not been correctly applied, the agency's errors are to be corrected. Dunning, at 63; see also generally, Mayland v. Flitner, 2001 WY 69, 110, 28 P.3d 838, 110 (Wyo.2001) and Miller v. Bradley, 4 P.3d 882, 886 (Wyo.2000).

DISCUSSION

Establishment of Private Road

[¶8] Wagstaffs contend that the Board's decision to establish a private road in this case was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law since GCC's property has an outlet to, and connection with, a public road. The Board received evidence of other possible routes to the Scott's Place property. County Road 150, the "Pape Road," to the east of Scott's place, was deemed not to be a viable option because the Green River lies between Seott's Place and the Pape Road, and there is no existing access without bridging across the river. The only other possible means of access would be from the west and north, which would require traveling an extra 35 miles on State Route 354, County Road 112, and County Road 115, and then traversing an additional 15 miles over dirt tracks across state and BLM property.

[¶9] Foundation for our review is found in Wyo. Stat. Ann. § 24-9-101 (Lexis 1999) :

Any person whose land has no outlet to, nor connection with a public road, may apply in writing to the board of county commissioners of his county for a private road leading from his premises to some convenient public road.... At the hearing, all parties interested may appear and be heard by the board as to the necessity of the road and all matters pertaining thereto. Upon the hearing of the application, whether the owner or others interested appear or not, if the board finds that the applicant has complied with the law and that the private road is necessary, the board shall appoint three (8) disinterested freeholders and electors of the county, as viewers and appraisers, and shall cause an order to be issued directing them to meet . on the proposed road, and view and locate a private road according to the application therefor, and to assess damages to be sustained thereby.... The viewers shall then proceed to locate and mark out a private road in accordance with the application or in such other manner and location they deem appropriate.... The proposed road shall not exceed thirty (80) feet in width from a certain point on the premises of the applicant to some certain point on the public road, and shall be located so as to do the least possible damage to the lands through which the private road is located. The viewers shall also at the same time assess the damages sustained by the owner over which the road is to be established and make full and true returns, with a plat of the road to the board of county commissioners.

[¶10] We have previously discussed the statutory requirement of "necessity":

We agree with the district judge that the county commissioners' finding that the road was not "necessary" was unsupported by the evidence. The evidence clearly demands the opposite conclusion. We hold that any person whose land is so situated that it has no outlet-no legally enforceable means by which he can gain access-has demonstrated necessity, as a matter of law, without there being a further need to show that he lives on that land or that it is being, or will be, used for some specific purpose nor was it proper to inquire into impact on adjoining owners (other than the owners whose land will be taken), financial interest of applicants, use for hunting, fences and improvements, or whether permissive access had been denied. In our view, the word "necessary" in the statute refers only to the lack of the type of outlet we have described to a "convenient" public road.

Gold v. Board of County Comm'rs of Teton County, 658 P.2d 690, 694 (Wyo.1983) (quoting McGuire v. McGuire, 608 P.2d 1278, 1286 (Wyo.1980)); see also Walton v. Dana, 609 P.2d 461, 468-64 (Wyo.1980).

[¶11] Specifically, in Walton, at 464, we found in support of our holding that the Danas had met their burden of proof of necessity under the statute:

There is presently a road connecting the Dana land with U.S. Highway 89 but they have mo enforceable right to its use; so that road, therefore, canmot be considered an outlet. There is no "convenient" way across the grantors' land because of swamps and a camal. The distance to the Muddy String Road of one and one half miles, as compared to a distance of only one-quarter of a mile to U.S. Highway 89 is a further measure of convenience.

(Emphasis added.) We also recognized in Walton, as we did in Smell v. Ruppert, 541 P.2d 1042 (Wyo.1975), that Wyo. Stat. Ann. § 24-9-101 offers complete relief to the landowner who has no outlet from his land and that there was no requirement therein that a petitioner for a private road must overcome every obstacle standing in his way, regardless of the expense and impracticability if he has a common law way of necessity which he can claim. Thus, we held that it is not a condition precedent to proceeding under § 24-9-101 that a landlocked owner must first proceed under any common law way of necessity he may have.

[¶12] In Martens v. Johnson County Bd. of Comm'rs, 954 P.2d 375, 380 (Wyo.1998), we clarified:

In ascertaining the legislative intent from the language of the statute [Wyo. Stat. § 24-9-101], we have moted that the legislature intended the procedure under the statute to provide in a local forum a readily available, economically affordable, and time efficient method to obtain a meams of access to property. McGuire v. McGuire, 608 P.2d 1278, 1288 (Wyo.1980). We have also stated that an application for a private road under Wyo. Stat. § 24-9-101 must be brought in good faith, and that it was the legislature's intent that convenience and reason should prevail in the establishment of roads.... Dunning, 936 P.2d at 64-65; Lindt v. Murray, 895 P.2d 459, 462 (Wyo.1995); McGuire, 608 P.2d at 1286.... A landlocked property owner cannot be forced "to choose a wholly illogical, uneconomic, and unproductive road." [Dunning, at 65] (quoting Ferguson Ranch, Inc. v. Murray, 811 P.2d 287, 290 (Wyo.1991)).

(Emphasis added.)

[¶ 13] Finally, we have explicitly enumerated that there is no requirement in $ 24-9-101 that a petitioner for a private road must overcome every obstacle standing in his way, regardless of the expense and impracticability, Miller v. Bradley, at 887 (citing Walton at 463); see also Mayland v. Flitner, 126, or that a landowner needs initially to proceed under any common law way of necessity he may have. Accordingly, any apparent argument asserted to the contrary by the Wag-staffs lacks merit.

[T14] Wagstaffs further argue that because GCC has an outlet and connection with a public road across two unimproved dirt tracks extending over State and BLM property, GCC cannot show that its property is landlocked which would necessitate a private road to be established. In a related argument, Wagstaffs also claim that the Board's finding that GCC has no outlet to a convenient road and that the aforementioned unimproved dirt tracks did not constitute "public" roads were made in error as a matter of law. We decline to so hold recognizing there are facts and applicable authority which require a contrary result.

[T15] In addressing the possible means of access to GCC's property, evidence was received by the Board that a route to the east of that property to County Road 150, known as the "Pape Road" was unfeasible since there was no existing access to the Pape Road and the Green River laid between the GCC property and the Pape Road. Therefore, this route, among other things, would require GCC to built a bridge over the Green River. Additional evidence was presented that the only other possible means of access to Scott's Place would be from the west and north which would require additional travel of 35 miles on State Route 354, County Road 112 and County Road 115 to the other parcel owned by GCC and then traversing several additional miles over dirt tracks across State and BLM property. The evidence revealed that County Road 115, for a distance of approximately 15 miles on this route, was not maintained during the winter months; and the dirt tracks located upon the State and BLM property were not maintained at any time, were solely passable in the summer months at a slow rate of speed, and were only used occasionally by hunters and not the general public.

[¶16] Wagstaffs further argue, relying on the case of McGuire, 608 P.2d at 1287-88, that the unimproved dirt tracks on the State and BLM land must be considered public roads which give GCC access to Scott's Place. The affidavit of Edwin R. James, President and Manager of First American Title Insurance Company of Sublette County, who is licensed by the State of Wyoming to issue title insurance, established that upon his review of the applicable land title records, that there was nothing within those records to establish that GCC had a documented right of access to the Scott's Place property. Further, although the title policy issued by First American Title lists this route as an exception, this does not conclusively establish that the route upon the State and BLM land is legally accessible by GCC.

[T17] We also find that the case of McGuire as to its ruling regarding public roads is distinguishable from this case. No evidence was presented to the Board concerning GCC's access via this route other than that mentioned above, whereas in McGuire, the evidence disclosed that the public had traversed thé BLM road for many years. In addition, a realty specialist from the BLM testified in McGuire that any United States citizen may travel existing roads or trails on public land unless specifically closed by the BLM and that the BLM had no present plans to close the road there involved. In this case, no evidence was presented that the public generally has the privilege to traverse the unimproved dirt tracks on the State and BLM land involved.

[T18] Moreover, even if we were to hold that the unimproved dirt tracks on the State and BLM land constituted public roads, such a determination is not definitive in the analysis that must be made. As stated previously, the legislature in its enactment of § 24-9-101 intended that the term "outlet" be such that it affords the landowner access via a convenient public road and that convenience and reason prevail in the establishment of roads. While Wagstaffs argue that GCC should be required to use the route over the State and BLM unimproved dirt tracks because GCC could file a petition to require the needed maintenance on County Road 115 and the unimproved dirt tracks across the State and BLM property and spend additional monies to improve the State and BLM unimproved dirt tracks so they would be generally passable on a year round basis, requiring GCC to take such acts simply does not fall within the legislature's expressed intention.

[¶19] A clear similarity exists between the facts presented in this case with those presented in Walton v. Dana, 609 P.2d at 463-64. In Walton, this court found it unreasonable, given the legislature's recognized intent under $ 24-9-101, to force the Danas to utilize a route to U.S. Highway 89 to which they had no enforceable right to use or to force them to build a road across the grantors' land over swamps and a canal. This court also recognized that the distance to the Muddy String Road of one and a half miles, as compared to the distance of only one-quarter of a mile to U.S. Highway 89 was a valid consideration based on convenience. Id.

[¶20] Likewise, we hold that GCC cannot be required to construct a roadway with ail the noted difficulties to the "Pape Road" or travel an extended route over State Route 354, County Road 112 and County Road 115 to its other parcel and then traverse several additional miles over unimproved dirt tracks across State and BLM property, a route which may not be legally enforceable, along roads which are not maintained during the winter months and along unimproved dirt tracks which are rarely used by the public.

[¶21] In reviewing appeals from administrative bodies, we cannot substitute our judgment for that of the ageney as long as the decision is supported by substantial evidence. Under the present cireumstances, the Board's finding of necessity is supported by substantial evidence. We also hold that the Board did not err as a matter of law in finding that GCC has no outlet to a convenient public road and that the unimproved dirt tracks did not constitute "public" roads.

Width of the Private Road

[¶22] Wagstaffis argue that the Board amendment of the viewers' and appraisers' report as to the road width was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, and otherwise not in accordance with law.

[¶23] The Board reviewed the report of the viewers and appraisers for a thirty foot wide private road as requested by GCC and authorized in § 24-9-101, which provides that a private road, if established, shall not exceed thirty feet in width from a certain point on the premises of the applicant to some certain point on the public road. That review process is envisioned by Wyo. Stat. Ann. § 24-9-103 (Lexis 1999) and provides in pertinent part:

The viewers and appraisers so appointed, or a majority of them, shall make a report to the county commissioners at the next regular session, of the private road so located by them, ... and if the commissioners are satisfied that such report is just, and after payment by the applicant of all cost of locating such road, and the damages assessed by the viewers, the commissioners shall order such report to be confirmed and declare such road to be a private road, and the same shall be recorded as such.

(Emphasis added.) Additionally, Wyo. Stat. Ann. § 18-3-504 (LexisNexis 2001) provides that each board of county commissioners may make such orders concerning the property of the county as it deems expedient, lay out, alter or discontinue any road running through the county, and perform such other duties as prescribed by law.

[124] Finally, in trying to ascertain the intent of the legislature in its adoption of those applicable statutes regarding the establishment of private roads, we are again convinced that the legislature intended the procedure under these statutes to provide in a local forum a readily available, economically affordable, and time efficient method to obtain a means of access to property, and that convenience and reason should prevail in the establishment of roads. Martens v. Johnson County Bd. of Comm'rs, 954 P.2d at 380, and those cases cited therein. Accordingly, we hold the Board does have an ability, within its discretion, to modify a viewers' and appraisers' report when considering the establishment of a private road.

[¶25] We also stated in Carney v. Board of County Comm'rs of Sublette County, 757 P.2d 556, 560-61 (Wyo.1988):

The statutory criterion for selection of a route for a private road is that the viewers and appraisers are to locate route that will "do the least possible damage to the lands through which such private road is located." Section 24-9-101, W.S$.1977. In that regard, the route chosen need not be the most convenient and reasonable route possible, taking into account all possible routes, but it only need be a reasonable and comnvement route McGuire v. McGuire, Wyo., 608 P.2d 1278 (1980). The statute does not specify those things the viewers and appraisers are to consider other than the "least possible damage" to the property. The legislature has directed, however, that these viewers and appraisers should be three disinterested freeholders and electors of the county, and, presumably, that requirement contemplates that they will be knowledgeable with respect to the local conditions and will apply that knowledge and their common sense in arriving at a determination.

(Emphasis added.) It is also inherently reasonable, if not an absolute requirement, that the Board utilize its own knowledge and common sense in complying with its fiduciary duties in its review and ultimate establishment of a private road.

[¶26] In determining that the width of the private road should be at a width of thirty feet over its entire length, the Board initially discussed the necessary width should any subdivision take place in the future. The Board then reviewed in detail the testimony given by the viewers and appraisers as to width and the plat of the private roadway proposed by a state registered professional licensed surveyor admitted into evidence at a hearing before the Board. The surveyor was also asked to comment on his proposed plat and the width of the private road. It was expressly recognized that the plat was reviewed and referred to by the selected viewers and appraisers. Finally, the Board discussed issues which regarded the ditch and a bridge involved and the property line as it concerned the width of the private road.

[¶27] Under the applicable abuse of discretion standard, we determine whether the trial court could reasonably conclude as it did and whether any part of its ruling was arbitrary and capricious. Thompson v. Board of County Comm'rs of County of Sublette, 2001 WY 108, 17, 34 P.3d 278, 17 (Wyo.2001) (citing Vaughn v. State, 962 P.2d 149, 152 (Wyo.1998)). Upon review of the record, we are not persuaded that the Board abused its discretion or acted in an arbitrary or capri-clous manner in determining that the width of the private road should be thirty feet in width along its entire length. The Board reviewed the issues and facts before it, yet disagreed with the proposal made by the viewers and appraisers. Sufficient evidence existed as the basis for the Board's ultimate width determination.

Assessed Damages

[T28] Finally, Wagstaffs assert the Board's $10,000.00 damage assessment and analysis of damages generally was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, and otherwise not in accordance with law.

[¶29] The Board held a hearing on the report of the viewers and appraisers. At that time, testimony was elicited from two of the viewers and appraisers and two other witnesses. In particular, a contractor testified concerning his assessment that the increased cost for the Wagstaffs to maintain an adjacent irrigation ditch amounted to $20,000.00. Another witness, an appraiser, assessed a $16,682.00 damage estimate related to the devaluation of the Wagstaffs' property and the loss of land under the easement. Additionally, the viewers' and appraisers' testimony clearly established that the $50,000.00 damage estimate contained within their report was not performed using a "before and after" analysis. Thereafter, the Board in its Order Amending and Adopting Viewers Report and Conditional Declaration of Private Road assessed damages in the amount of $10,000. The Board, however, did not specifically give any basis for its reduction of damages.

[¶30] Wyo. Stat. Ann. § 24-9-101 (Lexis 1999) provides, in applicable part:

Upon the hearing of the application, whether the owner or others interested appear or not, if the board finds that the applicant has complied with the law and that the private road is necessary, the board shall appoint three (8) disinterested freeholders and electors of the county, as viewers and appraisers, and shall cause an order to be issued directing them to meet . on the proposed road, and view and locate a private road according to the application therefor, and to assess damages to be sustained thereby.... The viewers shall ... assess the damages sustained by the owner over which the road is to be established and make full and true returns, with a plat of the road to the board of county commissioners.

Wyo. Stat. $ 24-9-103 (Lexis 1999), further states:

The viewers and appraisers so appointed, or a majority of them, shall make a report to the county commissioners at the next regular session, of the private road so located by them, and also the amount of damages, if any, assessed by them, and the person or persons entitled to such damages, and if the commissioners are satisfied that such report is just, and after payment by the applicant of all cost of locating such road, and the damages assessed by the viewers, the commissioners shall order such report to be confirmed and declare such road to be a private road, and the same shall be recorded as such.

[¶31] We have had occasion previously to address the issue of establishing damages as it relates to applications for a private road under §§ 24-9-101 et seq. In Lindt v. Murray, 895 P.2d 459, 463 (Wyo.1995), we stated:

The Lindts claim the damage award is improper. It is evident from the proceedings before the Board that the directions given the Board by the district court in its remand order were not observed or understood. Therefore, we remand to the district court with directions that the district court remand to the Board and the Board reassemble the viewers and appraisers, or if necessary a different body of viewers and appraisers, and those viewers and appraisers assess damages as follows: (1) determine the value of the entirety of the Lindts' affected land before the private road was established; then, (2) determine the value of the Lindts' remaining land after the private road is in place; (8) subtract the "after" value from the "before" value, which then equals the damages due the Lindts. Coronado Oil Co. v. Grieves, 642 P.2d 423, 483 (Wyo.1982); and see generally Mettee v. Kemp, 286 Kan. 781, 696 P.2d 947, 949 (1985) (discussing Kansas statute which enumerates factors which may be considered in the "before-after" analysis).

See also Mayland v. Flitner, 2001 WY 69, ¶¶ 35-39 and Miller v. Bradley at 888-89.

[¶ 32] Since review of the record before us makes it apparent that the appropriate review as to the issue of damages using the required "before-after" analysis was not conducted, we remand this matter back to the district court with directions that the district court remand this matter to the Board and the Board reassemble the viewers and appraisers or, if necessary, a different body of viewers and appraisers, and those viewers and appraisers assess those damages incurred by the Wagstaffs, if any, using the necessary prescribed "before-after" analysis.

CONCLUSION

[¶ 83] We affirm the Board's establishment of a private road in the width of thirty feet over the entirety of its length as provided in the Board's Order Amending and Adopting Viewers Report and Conditional Declaration of Private Road. However, we reverse that portion of the order assessing damages and remand for the proper assessment of damages as required by established law consistent with this opinion.

      . We note that the legislature amended this statute in 2000, clarifying the procedures to establish a private road.

      . Wagstaffs also infer that they were not granted due process by those hearings held before the Board as required by § 24-9-101. To the contrary, the Board afforded Wagstaffs an opportunity to appear before the Board to contest both the taking and the damage awards determined as is explicitly required under the statute. See Martens v. Johnson County Board of Commissioners 954 P.2d at 380. Further, the Wagstaffs were notified of the Board's last hearing regarding the involved private road but chose not to attend this hearing.


source: Caselaw Access Project

license: Public Domain

text:
    2002 WY 125
    Francis B. AHEARN, Appellant (Plaintiff), v. James D. HOLLON, Jane N. Hollon and J. Hollon Enterprises, LLC, Appellees (Defendants).
    No. 01-150.
    Supreme Court of Wyoming.
    Aug. 26, 2002.

      Francis B. Ahearn, Pro se.
    H. Rick Hollon, Douglas, WY, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited case conference.

   LEHMAN, Justice.

[¶ 1] This is an appeal from a judgment of the district court ruling, in part, that appellee J. Hollon Enterprises, LLC. (JHE) had provided the required notice of default to appellant Francis B. Ahearn (Ahearn) concerning a sales contract entered into between those parties; that Ahearn failed to cure his default under such contract; and that JHE was entitled to take possession of the involved premises, including the lot, mobile home, and personal property at issue. We affirm and assess sanctions on appeal.

ISSUES

[¶ 2] Abearn sets forth the following issues on appeal:

I. Does a Purchaser under a Contract for Deed have to pay the amount shown on a Notice of Default if the amount shown on the Notice of Default does not conform to the terms of the Contract for Deed?
II. Does a Seller under a Contract for Deed have the right to retake possession and control of the premises by force and change the locks of the personal residence of the Buyer without first filing an action in court to do so when the Contract calls for such an action to be filed in the event of an alleged default?

JHE phrases the issues on appeal as:

I. The District Court did not err in finding that Defendant J. Hollon Enterprises, LLC, provided proper notice of default. II. The District Court did not err in finding that Plaintiff Ahearn had no right to the premises once Plaintiff Ahearn failed to timely eure the default and that Plaintiff wrongfully kept Defendant J. Hollon Enterprises, LLC, out of possession of the same; as well as finding that Defendant J. Hollon Enterprises, LLC, had the right to change the locks.

FACTS

[¶ 3] On September 26, 1998, Ahearn and JHE entered into a Contract For Deed and Title ("Contract") concerning a lot, mobile home, and personal property. Under the Contract, Ahearn was to pay JHE the amount of $24,000.00 which included a $250.00 earnest money deposit and a $250.00 amount at closing. The remaining $23,500.00 was then to be paid by Ahearn to JHE, plus interest at the rate of ten percent per annum, in 180 equal monthly installments of $252.64 beginning on November 10, 1998, and continuing on the 10th day of each month thereafter until paid in full. Also attached to the Contract was an Amortization Schedule. As a part of this arrangement, Ahearn and JHE established an escrow account at Converse County Bank (eserow agent).

[¶ 4] The escrow agent was to hold a copy of the Contract, a Warranty Deed from JHE to Ahearn, a Quit Claim Deed from Ahearn to JHE, and a Certificate of Title to the mobile home. Under the Contract and Escrow Instructions given to the escrow agent, the escrow agent was to deliver all escrow items to Ahearn upon full and complete payment and performance by Ahearn under the Contract. Conversely, the escrow agent, at the option of JHE, was to deliver all escrow items to JHE in the event that Ahearn continued for more than thirty days to remain in default under the Contract after written notice had been given to him.

[T5] Ahearn made only two payments. The first payment was in the amount of $255.00 and was credited as of November 10, 1998, with the second payment being made in the amount of $280.00, credited as of December 21, 1998. These two paymients plus the $250.00 earnest money deposit and $250.00 at closing were the only payments made by Ahearn. Since Ahearn did not make the November 1998 payment in the correct amount and Ahearn was late making the December 1998 payment, JHE advised the escrow agent that it would no longer be able to rely on the Amortization Schedule attached to the Contract. Instead, JHE would accept simple interest at ten percent per annum to be figured based upon the actual amount of the payments and the dates those were received.

[¶ 6] On July 26, 2000, JHE sent Ahearn a Notice of Default via certified mail, return receipt requested, since Ahearn was then in arrears under the Contract. The Notice of Default indicated, in part, that if Ahearn failed to pay $4,770.44 through the escrow agent within thirty days of the date on the Notice of Default, he would be required to immediately vacate the premise and return possession of the premises to JHE. Ahearn acknowledged receipt of the Notice of Default on August 8, 2000. A copy of the Notice of Default, along with a letter, was also sent to the escrow agent on this date by JHE. In addition, on August 8, 2000, JHE sent Ahearn a letter which enclosed a copy of the Notice of Default via regular mail. This letter explained that the effectiveness of the Notice of Default was not dependent upon Ahearn's acknowledging his receipt of the Notice of Default or upon Ahearn's actual receipt of the Notice of Default. Rather, under the Contract, the Notice of Default was effective as of the date that it was mailed.

[¶7] Ahearn failed to cure his default under the Contract or make any additional payments to the escrow agent or otherwise. On August 29, 2000, JHE delivered a Seller's Written Instruction to the escrow agent. This Seller's Written Instruction notified the escrow agent that pursuant to the Contract and Notice of Default, Ahearn had remained in default under the Contract for more than 30 days after written notice of such had been sent by mail to Ahearn. Therefore, the escrow agent was instructed to deliver all es-crowed items to JHE. A copy of this instruction was also sent to Ahearn by JHE. On this date, the escrow agent delivered the es-crowed items to JHE as demanded.

[T8] On August 30, 2000, JHE recorded the Quit Claim Deed from Abearn to JHE with the county recorder's office. On August 31, 2000, JHE sent two letters to Ahearn. These letters were identical except one indicated it was being sent certified mail, "return receipt requested," while the other was sent via regular post. These letters advised Ah-earn that he had failed to timely cure his default under the Contract; that the Seller's Written Instruction had been delivered to the escrow agent; and that the escrow agent had delivered the escrowed items to JHE. These letters also advised that JHE retained title and ownership of the subject property; that the Quit Claim Deed from Ahearn to JHE had been recorded; and that Ahearn's contractual interest in the involved property had been cancelled and terminated. Finally, these letters notified Ahearn that if he had not already vacated the premises, he was required to do so immediately.

[T9] On September 80, 2000, Jane Hollon on behalf of JHE, went to the premises with the intent of cleaning it, changing the locks on the mobile home, and marketing it for sale. Ms. Hollon believed at that time that Ahearn had vacated the property as required. When Ms. Hollon arrived, she noticed that Abearn's personal belongings still remained within the mobile home, thus she did not enter the mobile home. Ms. Hollon had a locksmith change the locks on the mobile home and left a handwritten note on the door which advised Ahearn that she had changed the locks and that if he needed to get his personal belongings, he should contact JHE's realtor. Ms. Hollon then left the premises but ensured that the doors to the mobile home were locked.

[¶ 10] Later that day, the realtor for JHE spoke to Ahearn at the mobile home. Ms. Hollon then returned to the trailer and spoke with Ahearn. During this conversation, it was agreed between Ahearn and JHE that Ahearn would vacate the premises by October 7, 2000. On October 2, 2000, JHE sent Abearn two letters, one via certified mail return receipt requested and the other via regular mail, which restated the October 7, 2000 deadline. Ahearn acknowledged receipt of the certified letter sent to him on October 8, 2000.

[¶11] On October 8, 2000, Ahearn's adult daughter, who resided within the premises with Ahearn, contacted JHE by telephone and requested that the vacate deadline be extended. On October 4, 2000, JHE agreed to extend the deadline until October 29, 2000, and that Ahearn would pay to JHE the amount of $250.00 for rent for the three-week extension period. On this same date, JHE mailed Ahearn and his daughter letters confirming this arrangement.

[¶ 12] Further, on October 4, 2000, Ab-earn telephoned James D. Hollon on behalf of JHE. Ahearn advised Mr. Hollon that he wanted to get together. Mr. Hollon asked what Ahearn wanted to discuss, and Ahearn replied that he would send Mr. Hollon a letter. Shortly, thereafter, JHE received a letter from Ahearn dated October 4, 2000. This letter acknowledged that the $250.00 being sent was to be used as rent until the end of October and would not be applied to amounts owed under the Contract,. Soon after this letter was received by JHE, Mr. Hollon, on behalf of JHE, and Ahearn spoke again via telephone. Ahearn inquired if they could get to together and renegotiate. Mr. Hollon declined, indicating that he was not interested in renegotiating and that JHE would stick to those terms that had been previously agreed upon.

[¶ 13] Ahearn did not vacate the premises by October 29, 2000; instead, he filed his complaint in this action on October 25, 2000. On November 21, 2000, JHE filed its answer to Ahearn's complaint and a counterclaim seeking possession of the premises, to eject Ahearn from the property, and damages. On December 29, 2000, JHE filed a second answer to the complaint of Ahearn and refiled its counterclaim.

[¶ 14] After a trial was held, the district court entered a judgment which, in part, ruled that JHE had provided the required Notice of Default to Ahearn under the Contract; that Ahearn failed to cure his default under the Contract; and that JHE was entitled to take possession of the subject property. This appeal followed.

STANDARD OF REVIEW

[¶ 15] After trial, the district court issued specific findings of fact and conclusions of law. In its recently published case of Hutchings v. Krachun, 2002 WY 98, 10, 49 P.3d 176, 110 (Wyo.2002), this court reiterated our standard of review:

The purpose of specific findings of fact is to inform the appellate court of the underlying facts supporting the trial court's conclusions of law and disposition of the issues. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 581, 538 (Wyo.1998). While the findings of fact made by a trial court are presumptively correct, we examine all of the properly admissible evidence in the record. Because this court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Rather, the appellant has the burden of persuading the appellate court that the finding is erroneous. Id. See also Maycock v. Maycock, 2001 WY 103, ¶ 11, 33 P.3d 1114, ¶ 11 (Wyo.2001). Findings of fact are not set aside unless inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence. The definitive test of when a finding of fact is clearly erroneous is when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. A determination that a finding is against the great weight of the evidence means that a finding will be set aside even if supported by substantial evidence. Id.See also Mathis v. Wendling, 962 P.2d 160, 163 (Wyo.1998). Conclusions of law made by the trial court are not binding on this court and are reviewed de novo. Maycock, T 12.

DISCUSSION

Sufficiency of the Notice of Default

In his first issue on appeal, Ahearn asserts that because the amount of the default specified in the Notice of Default was incorrectly stated too high, the Notice of Default did not conform to the Contract and it was, therefore, void and of no effect. Specifically, Ahearn erroncously contends that there could be no operative default until he received proper notice of his default pursuant to the Contract.

[¶ 17] In this instance, it is appropriate to apply that reasoning used in the case of Kost v. First Nat'l Bank of Greybull, 684 P.2d 819, 828 (Wyo.1984) wherein we stated:

We agree with appellant that failure to make payments, while constituting grounds for forfeiture of a conditional sales contract, does not operate to terminate the contract absent appropriate notice to the nonperforming party. Angus Hunt Ranch, Inc. v. Bowen, Wyo., 571 P.2d 974, 978 (1977); Younglove v. Graham & Hill, Wyo., 526 P.2d 689 (1974). We cannot agree, however, that the letters from Stahl and her attorney, invoking the default clause and requesting payments, failed to satisfy the notice requirements under the contract in this case.

Like in Kost, Ahearn's failure to make payments, while constituting grounds for forfeiture of the Contract, did not operate to terminate the Contract absent appropriate notice to Ahearn. Similarly as in Kost, we also hold that the Notice of Default sent by JHE to Ahearn invoking the default clause and requesting payment satisfied the notice requirements under the Contract.

[¶ 18] As set forth in Kost, at 823 (citing Amoco Prod. Co. v. Stauffer Chemical Co., 612 P.2d 463, 465 (Wyo.1980) and cases cited therein) our appellate obligation in cases of this sort is to interpret and construe the contract as a matter of law in order to shed light on the intention and understanding of the parties. Intention is determined from the words of the contract if the language is clear and unambiguous, considering the contract as a whole, and taking into account the relationships between the various parts. In this instance, as was the case in Kost, the default provision in the Contract contemplates Ahearn's breach of any term of the Contract, including payment of money. The purpose of the notice requirement with respect to default was to put Ahearn on notice that the default clause was being invoked by JHE, why such action was being taken, and how Ahearn might remedy the problem within the time allotted. See also Angus Hunt Ranch, Inc. v. REB, Inc 577 P.2d 645, 650 (Wyo.1978).

[¶ 9] The Contract provided, in applicable part:

27. NOTICES/ADDRESSES. Any and all notices or other communications required or permitted by this Contract or by law to be served on or given to either party hereto shall be in writing and shall be deemed actual notice and duly served, given, and received when and as of the date deposited in the United States mail, postage prepaid, certified, return receipt requested, addressed to the respective party in accordance with the addresses listed as follows:
Buyer: Mr. Francis B. Ahearn
[Address]
Seller: J. Hollon Enterprises, LL.C.
[Address]
28. RIGHTS UPON DEFAULT. In the event of a default by Buyer, Seller shall notify Buyer in writing of such a default and Buyer shall have 30 (Thirty) days after such Notice of Default to cure the default. Seller shall also send a copy of said notice to the Eserow Agent by U.S. mail, certified, return receipt requested. Should Buyer fail to timely cure such a default in the performance of this Contract, Buyer shall immediately and peaceably vacate the premises and return possession of the real property, mobile home, and personal property to Seller in good, sound, and acceptable condition, repair and order; in addition, both Buyer and Seller agree that it would be impractical or extremely difficult to determine the actual damages suffered by Seller because of such default, that the amounts paid by Buyer to Seller on execution and acceptance of this Contract and at closing plus any amounts paid monthly as specified above constitute a reasonable estimate of such damages, that Seller may retain such amounts as rents and liquidated damages in the event of such a default, that Seller may retake possession of the premises pursuant to Wyoming law for Forcible Entry and Detainer or otherwise, that Seller shall retain title and ownership of the real property, mobile home, and personal property, that Seller shall have any other rights accorded by Wyoming law, and that this Contract shall be cancelled and terminated ....

This language used within the Contract is absolutely clear and unambiguous.

[¶ 20] The Notice of Default informed Ahearn of the nature of his default, namely that he was delinquent in his monthly payments. The Notice of Default also informed him of the amount that Ahearn had to pay to cure the default and the applicable time-frame. Since Abearn knew the amount of each monthly installment, he cannot reasonably maintain that the Notice of Default failed to inform him of the extent of his default. In addition, a subsequent letter sent on behalf of JHE reaffirmed the nature of Abearn's default and indicated that he could avoid cancellation and termination of the Contract by making payment within thirty days from the date in which the Notice of Default had been mailed.

[¶ 21] Nonetheless, Ahearn complains that the amount of $4,770.44 indicated as his required payment to cure within the Notice of Default is too high and, therefore, the Notice of Default was ineffective. In support of this argument, Abearn makes numerous sundry calculations within his brief filed with this court and asserts that the $4,770 44 amount under each of these proffered calem-lations was inappropriately inflated. However, a simple review of Ahearn's posed calculations makes it patently clear that they are all incorrect. Namely, each of Ahearn's professed calculations fail to take into account both the amount of principal and interest owed by him to JHE under the Contract and property taxes paid by JHE although payment of such taxes was the obligation of Ahearn under the Contract. The correct calculation of the amount to cure totaled an amount higher than the $4,770.44 demanded by JHE to be paid by Ahearn. Obviously, JHE had every right to accept an amount less than that owed by Ahearn under the Contract. Had Abearn timely paid the amount of $4,770.44 as stated in the Notice of Default, the default would have been required to be deemed cured.

[¶ 22] Simply put, the Notice of Default and subsequent letter sent by JHE to Ab-earn notified Ahearn of the manner in which he had breached the Contract and of the performance necessary to cure his default. Such notice fully satisfied the express provisions set forth in the Contract and served to trigger the remedies under the default clause afforded to JHE. Therefore, we hold that the district court did not err in finding that the Notice of Default was sufficient under the terms enunciated within the Contract; that Abearn was unquestionably in default; and that he failed to cure the default in a timely fashion causing the cancellation and termination of the Contract under its express terms.

Obtaining Possession of the Premises

[¶ 23] In his last issue on appeal, Ahearn asserts that JHE improperly took possession of the premises by changing the locks on the mobile home. According to Ahearn, JHE was required to bring a Foreible Entry and Detainer action or similar court approved procedural action to appropriately take possession of the property. This argument also lacks merit.

[¶ 24] As set forth above, paragraph 28 of the Contract plainly and clearly provides that upon Ahbhearn's failure to cure his default under the Contract, the Contract would be cancelled and terminated. Upon cancellation and termination of the Contract, Abearn was mandated to "immediately and peaceably vacate the premises and return possession of the real property, mobile home, and personal property" to JHE "in good, sound, and acceptable condition, repair and order." The Contract at paragraph 28 further states that upon cancellation and termination of the Contract, JHE "may retake possession of the premises pursuant to Wyoming law for Foreible Entry and Detainer or otherwise" and that JHE "shall have any other rights accorded by Wyoming law" (emphasis added). Finally, the Contract provides that JHE "shall retain title and ownership of the real property, mobile home, and personal property" upon cancellation and termination of the Contract.

[¶ 25] The language of the Contract could not be any more unambiguous. Upon Ah-earn's failure to cure his default under the Contract, the Contract was cancelled and terminated by its explicit terms. Ahearn then had an affirmative duty to return possession of the property to JHE but failed to do so even in the face of numerous requests by JHE that Ahearn take this action. In addition, as soon as the Contract was can-celled and terminated, JHE immediately retained title and ownership to the subject property. Moreover, upon the cancellation and termination of the Contract, while JHE had an ability to instigate a Forcible Entry and Detainer action or other procedural action in a court of law, the Contract indicated that was not JHE's only right. JHE had the right to take any other action in an attempt to take possession of the property as it so chose. This included the right to change the locks on the mobile home and giving Ahearn notice that if he wanted to obtain his personal effects, he should contact JHE's realtor.

[¶ 26] Finally, Abearn argues that allowing JHE to change the locks on the mobile home in an attempt to take possession of the property violates his constitutionally protected right to be secure in his person, possessions, and property and did not afford him due process. Ahearn voluntarily entered into the Contract with JHE and, by doing so, must be accountable for understanding and abiding by the terms provided within that Contract. Here, Ahearn clearly voluntarily contracted to abide by the terms of the Contract thereby waiving any asserted constitutional protections afforded him, whether real or imagined, as asserted by Ahearn. Again, we find no merit in this aspect of Ahearn's argument.

[¶ 27] As stated previously, this Contract provided that upon cancellation and termination of the Contract, Abearn had an affirmative duty to return possession of the property to JHE, and JHE had the right to take possession of the property by Forcible Entry and Detainer, other legal procedural action in the courts, or otherwise. Indeed, it is further recognized by this court that JHE ultimately took legal action with the court system to effectuate its obtaining possession of the involved property by filing its counterclaim in this case.

Accruing Rent

[¶ 28] In its brief, JHE requests that this court require Ahearn to pay rent for the period of time he has apparently remained in possession of the premises since May 1, 2000, at the rate of $250.00 per month. A similar prayer for relief is contained within the counterclaim and refiled counterclaim of JHE filed in this action. This court, however, is not in the position to act as a fact finder and, therefore, may not take the action requested by JHE. Notwithstanding, JHE may have appropriate remedy before the district court under its counterclaims or otherwise in order to effectuate the collection of those damages incurred by JHE as a result of Ahearn's remaining in possession of the premises since May 1, 2000.

Imposition of Sanctions

[¶ 29] This court has previously well established that while we are generally relue-tant to impose sanctions, we will make such an award in those rare circumstances where an appellate brief lacks cogent argument, is devoid of pertinent authority to support the claims of error, and/or fails to make adequate references to the record. Gray v. Stratton Real Estate, 2001 WY 125, ¶ 11, 36 P.3d 1127, ¶ 11 (Wyo.2001) (citing Small v. Convenience Plus Partners, Ltd., 6 P.3d 1254, 1256 (Wyo.2000). This is such a rare cireumstance. Moreover, while we may make allowances for pro se litigants, they are not excused from the requirement that their brief be supported by cogent argument and citations to pertinent authority. Stone v. Stone, 7 P.3d 887, 891 (Wyo.2000).

[130] In this case, upon our review of those issues raised by Ahearn and the absolute lack of cogent argument and recitation of any pertinent authority in support of such issues, we have taken long pause to consider whether such sanctions should be properly imposed against Ahearn. Further, we note that we have granted Ahearn considerable leeway in reviewing his brief and addressing those issues presented therein. Simply stated, there is no basis in law, equity or public policy for Ahearn to defeat the contractual obligations into which he freely entered with JHE. Ahearn's arguments against non-enforeement of the Contract as adjudicated by the district court are not supported by pertinent authority and are completely lacking in merit. We, therefore, certify that there is no reasonable basis for this appeal and that sanctions are appropriate. W.R.A.P. 10.05.

[¶ 31] JHE is directed to submit a statement of costs and attorney fees associated with responding to this appeal. W.RAP. 10.06. Upon review, we will award an appropriate amount in the form of sanctions.

CONCLUSION

[¶ 32] Given those reasons set forth above, the judgment of the district court is affirmed and appellate sanctions pursuant to W.R.A.P. 10.05 are awarded in favor of JHE and against Ahearn.

      . The August 31, 2000 letter sent to Ahearn via certified mail, return receipt requested, was returned to JHE marked "unclaimed."

      . Apparently Ahearn has remained on the premises since October 29, 2000, until this day.


author: HILL, Chief Justice.

text:
    2002 WY 126
    Guy Wayne BECKER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    Nos. 01-48, 01-49, 01-50.
    Supreme Court of Wyoming.
    Aug. 27, 2002.

      Mary Guthrie, Cheyenne, Wyoming, Representing Appellant. Argument by Ms. Guthrie.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General; Theodore E. Lauer, Prosecution Assistance Program; and Crystal S. Swanson, Student Intern, Representing Appellee. Argument by Ms. Swanson.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   HILL, Chief Justice.

[¶1] Guy Wayne Becker (Becker) pleaded nolo contendere to four counts of second-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-308(a)(v) (LexisNexis 2001) and one count of third-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-(LexisNexis 2001). On appeal, Becker claims that he was mentally ill when he entered the pleas and that his trial counsel provided ineffective assistance by failing to have him evaluated by a mental health professional, permitting him to enter his pleas in the first instance and then not attempting to have the pleas withdrawn prior to sentencing. We find that Becker was provided with effective assistance of counsel and affirm.

ISSUES

[¶2] Becker sets forth the following statement of the issues:

Whether appellant Guy Becker was denied effective assistance of counsel because:
A. His attorney did not have his mental condition evaluated.
B. His attorney permitted him to plead nolo contendere only hours after he had been released from the hospital because of a drug overdose.
C. His attorney did not move to have his pleas withdrawn prior to sentencing.

The State responds with a statement of the issues from its perspective:

I. Did appellant receive effective assistance of counsel when the record directly contradicts his claims that his counsel failed to pursue a motion to suspend proceedings and for a mental evaluation of appellant?
II. Did appellant receive effective assistance of counsel when he knowingly, intelligently and voluntarily entered his pleas of nolo contendere?
III. Did appellant receive effective assistance of counsel when there was no fair and just reason for withdrawal of his nolo contendere pleas before sentencing?

BACKGROUND

[¶3] In case number 01-50, Becker was charged with four counts of second-degree sexual assault in violation of Wyo. Stat, Ann. § 6-2-303(a)(v). The charges were based on allegations that Becker had inflicted sexual intrusion on his granddaughter over a period of years when the victim was between the ages of four and seven. A three-day trial was held between March 14 and March 16, 2000. The jury was unable to reach a verdict, and the district court declared a mistrial. Subsequently, a new trial was scheduled for August of 2000.

[¶4] While awaiting retrial, Becker was free on an appearance bond. During the interregnum between the mistrial and the new trial, Becker engaged in sexual activity with two other minors that would form the basis of three additional charges. According ly, a bench warrant for his arrest was issued on August 17, 2000, and Becker taken into custody that afternoon.

[T5] The next morning, August 18, 2000, Becker and his counsel appeared before the district court for a scheduled hearing. Initially, the hearing had been scheduled for the entry of a guilty plea. However, Becker's counsel informed the court that after his arrest the night before, there was concern that Becker may have overdosed on Valium in an apparent suicide attempt. Becker was taken to the hospital, where he was forced to regurgitate the contents of his stomach. Accordingly, counsel expressed concern about Becker's competency to proceed with either trial or a plea. Counsel requested a continuance of the trial scheduled for August 21 and filed a motion to suspend the proceedings pending a mental health evaluation of Becker. The district court responded by noting that more information was needed about whether or not Becker had, in fact, attempted suicide and recessed the hearing to allow the parties to investigate.

[¶6] Meanwhile, the State filed two additional Informations against Becker on the same day. The first, case number 01-48, charged Becker with two counts of second-degree sexual assault for inflicting sexual intrusion on a victim who was less than twelve years old. The second, case number 01-49, charged Becker with one count of third-degree sexual assault for inflicting sexual contact on a minor victim. All three charges arose out of incidents occurring after the mistrial.

[¶7] The district court resumed the hearing late in the afternoon on August 18, 2000. No further mention of Becker's alleged suicide attempt, his mental capacity, or the motion to suspend the proceedings for an evaluation was made at this hearing. Instead, Becker, appearing with his counsel, and the State presented a plea agreement to the court. Pursuant to the plea agreement, Becker agreed to plead no contest to: (1) the first two counts of second-degree sexual assault in the case involving his granddaughter in case number 01-50; (2) the two counts of second-degree sexual assault in the first Information filed on August 18 in case number 01-48; and (8) the one count of sexual assault in the third-degree in the second Information filed on August 18 in case number 01-49. In exchange, the State agreed to recommend the sentences for charges within each case be concurrent to each other but would not offer any recommendation on whether the charges in the various cases should run consecutively or concurrently to one another.

[T8] After receiving the details of the plea agreement, the court proceeded to explain them to Becker, who acknowledged that he understood the terms. The court informed Becker of the rights he would be giving up if he pleaded nolo contendere and the potential sentences he faced under the charges. Becker stated that he was not under the influence of any substance or disability that would prevent him from understanding the proceedings. Becker then proceeded to plead no contest to four counts of second-degree sexual assault and one count of third-degree sexual assault. The State provided a factual basis for each of the charges to which Becker pleaded. The district court then questioned Becker to ascertain whether his pleas were voluntary and of his own volition. After finding that a factual basis existed for the pleas to the charges and that the pleas had not been improperly induced or coerced, the district court accepted and entered the pleas.

[¶9] The sentencing hearing was held on December 20, 2000. Becker was sentenced to a term of not less than 20 nor more than 40 years on each of the second-degree sexual assault counts in case number 01-50 with the sentences to run consecutively to each other. Becker was also sentenced to 20- to 40-year terms for the two second-degree sexual assault counts in case number 01-48 with those sentences also to run consecutively to each other. A sentence of not less than 10 nor more than 15 years was imposed on the third-degree sexual assault count in case number 01-49. Each of the sentences in the three cases was imposed consecutively to the sentences from the other cases.

[¶10] Becker filed his notice of appeal on January 19, 2001. On January 23, 2001, the Department of Corrections filed a Motion for Ex Parte Order of Transfer seeking authority to transfer Becker from the State Penitentiary to the State Hospital. In a letter accompanying the motion, the warden of the penitentiary stated that Becker was "... suffering from severe variant of a major depressive episode. He is severely depressed and suffers from a magnitude of co-morbid cognitive deficiencies." The warden noted that Becker's condition rendered him an acute suicide risk if he was housed with the penitentiary population. A memorandum signed by members of the penitentiary's medical services staff supported the warden's request. On January 25, 2001, the district court authorized Becker's transfer to the State Hospital.

STANDARD OF REVIEW

[¶11] For purposes of our review, a plea of nolo contendere is functionally equivalent to a guilty plea. Ochoa v. State, 848 P.2d 1359, 1361 (Wyo.1993). A guilty plea must be "knowing and voluntary." McCarty v. State, 883 P.2d 367, 372 (Wyo.1994) (quoting Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct. 517, 528, 121 L.Ed.2d 891 (1992)). "The validity of a guilty plea is tested by determining 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" McCarty at Id. (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)).

[T12] We recently set forth in detail our standard for reviewing claims of ineffective assistance of counsel and, in particular, the specialized test for claims of ineffectiveness where the entry of a guilty plea is challenged:

Wyoming has a well-established and oft-repeated standard for reviewing claims of ineffective assistance of counsel:
"When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the cireumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 798, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67.(Wyo.1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 185, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to 'render such assistance as would have been offered by a reasonably competent attorney' and that 'counsel's deficiency prejudiced the defense of [the] case' Lower v. State, 786 P.2d 346, 349 (Wyo.1990). 'The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.
Chapman v. State, 2001 WY 25, ¶ 6, 18 P.3d 1164, 1168-69 (Wyo.2001) (quoting Grainey v. State, 997 P.2d 1085, 1088-39 (Wyo.2000)). This test has been specialized for cases where entry of a guilty plea is challenged on the basis of ineffective assistance of counsel:
When an attorney has allegedly misad-vised his client with respect to the entry of a guilty plea, a determination must be made of whether the decision to plead and forego the defense of his case resulted in prejudice to the client. That determination involves two interrelated questions: whether, in the absence of counsel's error, the recommendation of a reasonably competent attorney concerning the plea would differ from that given; and, whether, absent the error, the outcome of a trial would have been more advantageous to the client than the result of his plea. Hill [v. Lockhart], 474 U.S. [52] at 59-60, 106 S.Ct. [866] at 370-71 [88 L.Ed.2d 208 (1985)]. The defendant may also establish the necessary prejudice by proof of cireumstances indicating that, in deciding whether or not to plead guilty, he placed special emphasis on the challenged aspect of his attorney's advice. He must suggest to the reviewing court a plausible reason why, had his representation been as he claims it should have been, he would have chosen to forsake the benefits of his plea agreement for the risks of trial. Id.; see also Worthen [v. Meachum], 842 F.2d [1179] at 1184 [ (10th Cir.1988) ].
Lower v. State, 786 P.2d 846, 349 (Wyo.1990); see also Brock v. State, 981 P.2d 465, 469 (Wyo.1999). The burden of proving that counsel was ineffective rests on the appellant. Sorensen v. State, 6 P.3d 657, 660 (Wyo.2000), cert. denied, 531 U.S. 1093, 121 S.Ct. 818, 148 L.Ed.2d 702 (2001) (quoting Frias v. State, 722 P.2d 185, 145 (Wyo.1986)).

Reyna v. State, 2001 WY 105, ¶ 19, 33 P.3d 1129, 1134-85 (Wyo.2001).

DISCUSSION

[¶ 13] Becker claims that his trial counsel was ineffective in three ways: (1) failing to continue the plea hearing so that his mental condition could be evaluated; (2) permitting Becker to plead despite his mental condition; and (8) failing to move for withdrawal of his nolo contendere pleas prior to sentencing. At its heart, Becker's claim is that his pleas were not knowing or voluntary because of his mental condition and his counsel's failure to prevent him from pleading or to take corrective action thereafter constituted a deficient performance. Becker alleges that the deficient performance of his counsel resulted in prejudice because there was a reasonable probability of a different result since he could have made pleas of not guilty by reason of mental illness or gone to trial under that defense.

[¶ 14] After examining the totality of the cireumstances surrounding the pleas, we conclude that the record does not support Becker's claims. At the outset, we note that the mere fact that Becker may have suffered from some mental health problems that were manifested in terms of depression or suicidal thoughts is not sufficient in and of itself to render his pleas involuntary. See Eathorne v. State, 448 So.2d 445, 449 (Ala.Cr.App.1984) and State v. Byrge, 225 Wis 2d 702, 594 N.W.2d 388, 392 fn. 3 (Wis.App.1999) ("A person is not incompetent simply because he or she is not in good mental health or because he or she has thoughts that a mature, healthy individual would not have.").

[The mere presence of mental illness or other mental disability at the time Bolius entered his plea does not necessarily mean that he was incompetent to plead under the Dusky test. Dusky v. United States, 1960, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824. The mental illness or disability must have been so debilitating that Bolius was unable to consult with his lawyer and did not have a rational and factual understanding of the proceedings.

Bolius v. Wainwright, 597 F.2d 986, 990 (5th Cir.1979). There is nothing in the record to indicate that Becker's alleged mental disability was so debilitating as to render him incapable of consulting with his lawyer or unable to understand and participate in the sentencing proceedings. The record, in fact, shows that Becker was fully cognizant of the proceedings and that his plea was knowledgeably and voluntarily given.

[¶ 15] When the hearing commenced on the morning of August 18, 2000, Becker's counsel notified the court of the alleged suicide attempt the night before and questioned Becker's competence to proceed with a plea hearing. She also filed a written motion with the court to suspend the proceedings pending a mental health evaluation. At that point, the district court noted that it did not have any factual basis to conclude that Becker had, in fact, attempted suicide. Accordingly, the court recessed the hearing for the specific purpose of allowing the parties, including defense counsel, time to investigate.

[¶ 16] When the hearing recommenced on that afternoon, neither party nor the court mentioned the attempted suicide or Becker's mental condition. Instead, the parties proceeded directly to the details of the plea agreement. Ideally, Becker's counsel should have addressed the issue and at least explained why it was no longer a concern. However, that failure does not necessarily constitute a deficient performance on her part. Clearly, since she raised the issue at the morning hearing and filed a written motion to suspend the proceedings in favor of an evaluation, counsel was aware of the potential concerns surrounding Becker's mental condition. As Becker admits, his counsel had provided him with exemplary representation during the proceedings, including obtaining a hung jury in his first trial. Becker concludes from the silence in the record during the afternoon plea hearing, that his counsel had suddenly become ineffective. However, one can also infer from that silence that counsel followed the district court's direction to investigate the alleged suicide and Becker's mental condition during the hearing recess and concluded that there was no substance to any claim of mental impairment and that the best course of action was to simply proceed with the plea agreement. Such an inference is supported by the comments of Becker's counsel during the afternoon plea hearing:

I would wish to add one thing at this point, that Mr. Becker after full consultation with myself and the defense team including Miss Parnell and Mr. Goldberg, in light of the fact that there would be new physical evidence and pending charges, that Mr. Becker wished to not fight these charges.
He would also like the Court to know that it was his sincere desire to avoid having his granddaughter take the stand again, and to avoid having these other two young women have to get on the stand and testify.

We presume that counsel rendered adequate representation and exercised reasonable professional judgment in all significant decisions. Reyna, 2001 WY at 119, 83 P.3d 1129. In the absence of any evidence to the contrary, we will presume that counsel's "full consultation" with Becker included consideration of his mental capacity and his ability to knowingly and voluntarily plead to the charges against him.

CONCLUSION

[¶ 17] A claim of ineffective assistance of counsel based on an allegedly invalid plea of guilty or no contest to criminal charges must necessarily be accompanied by a demonstration that the plea was not knowledgeable or voluntary. If the plea is attacked through a claim that the defendant was mentally incompetent to render a knowledgeable or voluntary plea, then the defendant must show that he was so debilitated that he was unable to consult with his attorney and did not have a rational and factual understanding of the proceedings at the time the plea was given.

[¶ 18] In this case, the record indicates that Becker's pleas were knowingly and voluntarily given with full cognizance and understanding of the consequences. The mere fact that Becker may have been suffering from depression and expressed suicidal inclinations is not, in and of itself, enough to make him incompetent to plead. The record supports the conclusion that Becker was competent to plead and, accordingly, he has failed to negate the presumption that his counsel provided adequate representation. Becker's pleas and sentences are affirmed.


author: HILL, Chief Justice..

text:
    2002 WY 127
    Robert L. BURT, Appellant (Defendant), v. Charlene D. BURT, Appellee (Plaintiff).
    No. 01-109.
    Supreme Court of Wyoming.
    Aug. 28, 2002.
    Robert L. Burt, Pro Se, Representing Appellant.
    Charlene D. Burt, Pro Se, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   HILL, Chief Justice..

[T1] Appellant, Robert L. Burt (Burt), seeks review of a provision of the district court's divorcee decree granting a divorce to him and his wife. The divorce proceedings were resolved upon Burt's default. Although no record was developed in the district court, and the issue that Burt wishes to pursue was not raised there, he asks this Court to review the district court's division of his military pension. Burt's wife did not file a brief or otherwise appear in this court.

[¶2] We will affirm.

[¶3] Burt poses his issue in these words:

A military divoree has some additional factors that revolve around Federal law, military retired pay jurisdiction of state court. First of all, military retired pay is treated separately by state courts as property and it will be dealt with in some manner by state divorce court. As per the wording in the Decree of Divorce, retirement funds ..., Federal law, specifically the Uniformed Services Former Spouse Protection Act, give the state divorce courts limited power regarding military retired pay and gives the military pay centers the ability to enforce a divorce decree such [as] was ordered by District Court, Fifth Judicial District ... of Wyoming. The pay centers can enforce the above order if it is in compliance with requirements and limitations described in Federal law.
I feel the judge didn't follow ... Federal law when he awarded Charlene Burt (former spouse) $400.00 .... I'm told there is no tape recording or transcript on the hearing done in open court at the Park County Annex, Powell, Park County, Wyoming on the 6th of April, 2001. Since I was not there, I have no knowledge if any Federal law was used in the decision of the decree. The disposable retired pay was not defined in accordance with Federal law. In my case I get VA disability pay. The amount of disposable pay is figured, gross pay minus VA pay and withholding tax. -The Federal law will not allow more than 50% of the disposable to be awarded. In my case, it would be less than $400.00 and this can change. My cancer, which may be caused by Agent Orange, would give me more disability pay, thus, my disposable income would be less.
I am not appealing the whole of the Decree of Divoree, but only my retirement fund to have the award follow Federal law. I pray the court will give me relief on my disposable income. [Footnoted added.]

[T4] We need not set out the factual background because there is really none to set out. On November 7, 2000, Burt's wife filed a complaint seeking a divorce from Burt. Burt was served with the complaint on November 29, 2000. Burt did not answer and default was entered on February 23, 2001. The decree of divorcee was entered on April 6, 2001. That decree included this provision: |

7. RETIREMENT FUNDS: WIFE shall receive $400.00 per month alimony paid directly from HUSBANDS military retired pay. HUSBAND shall retain any other retirement funds he owns. WIFE shall retain as her separate property any retirement funds she owns.

[¶ 5] Burt filed a timely notice of appeal on May 3, 2001, but his brief was not filed here until February 27, 2002. Burt was granted generous extensions by this Court because he was imprisoned at the Wyoming State Penitentiary and then was, for a time, incarcerated in Montana awaiting disposition of a criminal matter. This case was assigned to the expedited docket by order entered on April 23, 2002.

[¶ 6] The decree of divorce states that the divorce was considered by the district court based on the testimony and evidence presented by Burt's former wife, and without Burt being present in court. It is apparent that the hearing was not reported, and the record on appeal does not include a transcript or the documentary evidence received by the district court, if any. Burt did not undertake to settle the record below by other means. See W.RAP. 3.08. Burt's claim that the district court erred in dividing his military retirement benefit depends on the state of the record and the condition of the evidence in that regard.

[T7 When this Court does not have a properly authenticated transcript before it, it must accept the trial court's findings of fact upon which it bases any decisions regarding evidentiary issues. Capshaw v. Schieck, 2002 WY 54, ¶ 21, 44 P.3d 47, 1 21 (Wyo.2002). The failure to provide a tran-seript does not necessarily require dismissal of an appeal, but our review is restricted to those allegations of error not requiring inspection of the transcript. Lacking a tran-seript, or a substitute for the transcript, the regularity of the trial court's judgment and the competency of the evidence upon which that judgment is based must be presumed. Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo.1996); Combs v. Sherry-Combs, 865 P.2d 50, 55 (Wyo.1993); and see Wood v. Wood, 865 P.2d 616 (Wyo.1998) (dismissing appeal for lack of record, rather than affirming). Therefore, we will presume that the district court had a proper basis for its division of Burt's military pension.

[¶ 8] The decree of divorce is affirmed.

      . Because the record on appeal is incomplete and does not support Burt's issue, we will not address the merits of his claim. However, with respect to the issue raised, see the following authorities: Forney v. Minard, 849 P.2d 724, 728-30 (Wyo.1993); Major Michael H. Gilbert, A Family Law Practitioner's Road Map to the Uniformed Services Former Spouses Protection Act, 32. Santa Clara L.Rev. 61 (1992); and 24 Am.Jur.2d Divorce and Separation §§ 217, 539, and 782 (1998).

      . W.R.C.P. 55 states:
      Rule 55. Default.
      (a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.
      (b) Judgment. Judgment by default may be entered as follows:
      (1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain, or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not a minor or an incompetent person;
      (2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against a minor or an incompetent person unless represented in the action by a guardian, guardian ad litem, trustee, conservator, or other such representative who has appeared therein. If the party against whom a judgment by default is sought has appeared in the action the parly (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute.
      (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).
      (d) Plaintiffs; Counterclaimants; Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).


author: GOLDEN, Justice.

text:
    2002 WY 128
    Michael L. McMANAMAN, Appellant (Defendant), v. Debra McMANAMAN, Appellee (Plaintiff), and The State of Wyoming, Appellee.
    No. 01-229.
    Supreme Court of Wyoming.
    Aug. 29, 2002.
    Jerry M. Smith of Sigler & Smith Law Office, Torrington, Wyoming, Representing Appellant.
    Hoke MacMillan, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Sue Chatfield, Assistant Attorney General, Representing Appellee State of Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference

   GOLDEN, Justice.

[¶ 1] In this appeal, we consider whether the failure to provide mandatory statutory notice voids an order of garnishment and whether the trial court correctly determined that proceeds from the sale of cattle are not exempt from the order of garnishment. After Appellant Michael L. McManaman's objection to garnishment and motion to quash garnishment were denied, his subsequent claim of exemption from garnishment was also denied. He contends that these orders are erroneous under Wyo. Stat. Ann. §§ 1-17-102(b) and 1-15-102(a)(vi). We affirm.

ISSUES

[¶ 2] Appellant Michael L. McManaman states the issues as:

I. Whether the execution/garnishment of the Appellant's bank account was valid or lawful when Notice of Exemptions and Right to Hearing was not served on the Debtor/Appellant when the Judgment was entered as required by W.S. § 1-17-102(b).
II. Whether Proceeds from the sale of cattle qualify as "earnings" subject to exemption pursuant to Wyo. Stat. § 1-15-102(a)(vi).

Appellee State of Wyoming states the issues as:

I. Whether the district court correctly determined that notice after the garnishment properly protected the due process rights of the appellant.
II. Whether the district court correctly determined business profits from the sale of cattle are not earnings and are subject to garnishment.

Appellee Debra McManaman did not file a brief.

FACTS

[¶ 3] On July 24, 1992, a decree of divorce was entered for McManaman and his wife. She was granted custody of two children, and McManaman was ordered to pay child support of $125 per month per child. In October of 1992, a supplemental judgment was entered ordering McManaman to pay the State of Wyoming $1,875 for child support arrearages at a rate of $28 per month. On January 31, 2000, the State of Wyoming petitioned the district court for relief against McManaman's failure to pay child support. On September 21, 2000, the district court entered an order reducing the arrearage to a money judgment totaling $21,283.05, and, in May of 2001, permitted McManaman to pay an additional $100 per month towards the arrearage.

[¶ 4] On July 23, 2001, Child Support Enforcement filed for a writ of garnishment which the district court had served on the Lusk State Bank. Although the writ directed the bank to answer and hold any funds, the bank sent the balance of MeManaman's checking account, $11,270.56, to the court clerk along with its answer to the garnishment. After Child Support Enforcement was informed of the bank's action, it mailed to McManaman's attorney a copy of the pre-cipe for writ of garnishment, a blank garnishee's answer to writ of garnishment, a copy of the order regarding modification of child support, and a notice of exemptions and right to hearing pursuant to Wyo. Stat. Ann. § 1-17-102(b).

[¶ 5] McManaman challenged the validity of the garnishment by filing an objection to garnishment and motion to quash garnishment. A hearing was held, and the district court ruled that Child Support Enforcement had failed to comply with statutes requiring that McManaman be provided with the May judgment as well as a copy of the notice of hearing and right to exemptions. The district court ruled, however, that this error did not render the garnishment void, and the motion to quash was denied. The district court ruled that McManaman had ten days to request a hearing for exemptions.

[¶ 6] McManaman requested a hearing for a claim of exemption, asserting that the funds garnished were proceeds from his cattle operation and his only source of income and were, therefore, earnings as defined by statute. The district court ruled that the funds in MceManaman's bank account were not future income and did not qualify under the earnings exemption statute. The district court ordered the money be deposited in an interest bearing account pending appeal of this ruling. This appeal followed.

DISCUSSION

[¶ 7] MceManaman first contends that the failure to provide him with the statutorily required notices before garnishment of his funds violated his federal and state constitutional right to due process, voids the garnishment, and requires the return of his funds with interest. We, however, agree with the trial court's determination that the statute was violated, the proper remedy for the violation was the hearing provided, and the violation did not require voiding the garnishment. The relevant statute, Wyo. Stat. Ann. § 1-17-102 (LexisNexis 2001), provides:

§ 1-17-102. Request for hearing when property seized under execution.
(a) Except as provided in subsection (e) of this section, a person, other than a corporate entity, against whom a money judgment has been entered and whose property is seized under execution is entitled to a hearing within five (5) days, excluding Saturdays, Sundays and legal holidays, after the court receives the person's written request for a hearing to determine if the property seized is exempt from exe-ecution. The person whose property is seized shall file a written request for a hearing with the clerk of court within ten (10) days after seizure of his property.
(b) Except where the judgment is solely against corporate entities, the court shall attach to every money judgment a notice containing the following information:
"You are informed that since the judgment is entered the prevailing party may proceed to seize your property, funds or wages by execution or garnishment. In that event you may be entitled to the following exemptions:
(i) Social security benefits pursuant to 42 U.S.C. 407 and supplemental security income;
(ii) Veteran's benefits;
(i) Black lung benefits;
(iv) Personal opportunities with employment responsibilities (POWER) payments;
(v) Federal civil service and state retirement system benefits as provided in 5 U.S.C. 8346 and W.®. 9-3-426 and 9-3-620;
(vi) Worker's compensation benefits;
(vii) Unemployment compensation benefits;
(viii) A portion of wages as provided in W.S. 1-15-408, or in the case of consumer credit sales, leases or loans, as provided by W.S. 4014-505;
(ix) Homestead, personal articles and articles used for carrying on a trade or business to the extent provided by W.S. 1-20-101 through 1-20-109;
(x) Other exemptions as provided by law.
To assert your right to any of the foregoing exemptions you shall file a written request with the clerk of court within ten (10) days after seizure of your property, funds or wages. If you fail to make a written request for a hearing and claim one (1) or more of the foregoing exemptions within ten (10) days after seizure of your property, funds or wages, you may waive or lose your right to claim the exemptions."
(c) As to any judgment entered prior to June 11, 1986, the notice provided in this section shall be sent to the last known address of the judgment debtor by the clerk of court upon the request of any person before any property of the judgment debtor is seized by execution or garnishment.
(d) A copy of the money judgment together with the exemption information shall be transmitted by the court by first class United States mail, with the postage prepaid in envelopes furnished and properly addressed by the prevailing party.
(e) Notwithstanding any other provision of this section, a judgment debtor who is served with a writ of continuing garnishment under W.S. 1-15-506 shall file objections to the continuing garnishment and receive a hearing on his objections as provided by W.S. 1-15-507 and 1-15-508.

[¶ 8] As McManaman asserts, the district court recognized, and Child Support Enforcement concedes, the court and Child Support Enforcement failed to comply with sections (b) and (d) by faﬂing to provide notice in the September or May judgments and failing to provide the court with envelopes and postage for mailing. McManaman provides us with authority establishing that statutorily created exemptions from judgment executions are a property right protected by due process that entitle the beneficiaries of exemptions to the procedural due process rights of notice and hearing. See Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 LEd.2d 287 (1970); Aacen v. San Juan County Sheriffs Dep't, 944 F.2d 691, 695 (10th Cir.1991). He also provides authority that due process requires that state laws should contain provisions adequate for notifying a judgment debtor that exemptions exist, certain property seized may qualify for exemptions, and the right to a hearing. McManaman, however, does not challenge the adequacies of Wyoming's statutory provisions.

[¶ 9] Instead, McManaman asserts that the failure to notify him of exemptions at the time that judgment was entered against him deprived him of an opportunity to stay execution on garnishment before his property was attached, and this failure invalidates the garnishment as a matter of law. He does not, however, provide authority for this assertion, and we have found none. The violation of the statutorily mandated notice requirements, and the failure to provide procedural due process, required that the district court provide notice and hearing to MeManaman, and, having done so, we hold that the garnishment of McManaman's bank account was valid although the notice of exemptions and right to hearing was not served on him at the time the September 2000 and May 2001 orders on judgment were entered. The district court's orders denying objection to garnishment and motion to quash garnishment are affirmed.

[¶ 10] McManaman next contends that the district court erred in determining that the statutory exemption for earnings does not apply to proceeds from the sale of his cattle. He contends that his ranching operations are his sole source of income and the legislature intended to exempt earnings which provide for the basic necessities of life. We proceed with our discussion of this issue, but note that a majority of jurisdictions now recognize that support orders are exeeptions to statutory limitations on collection. Because the parties here did not raise or brief the issue whether the garnishment statutory exemptions apply to court-ordered child support and arrearages reduced to money judgment, we assume without deciding that the statutory exemptions apply to this garnishment proceeding.

[¶ 11] Wyo. Stat. Ann. § 1-15-102 (Lex-isNexis 2001) defines earnings as follows:

(a) As used in this chapter unless otherwise defined:
* * * * d
(vi) "Earnings" or "earnings from personal services" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, proceeds of any pension or retirement benefits or deferred compensation plan or otherwise;
x a ix 2% s #

[¶ 12] McManaman relies upon our decision in Lingle State Bank of Lingle v. Podolak, 740 P.2d 892 (Wyo.1987). Podolak considered an earnings exemption available under § 1-17-411, now superseded, and decided the legislature intended the earnings exemption to apply to income produced by farming 'and ranch. Id. at 894. Because new statutory provisions had taken effect at the time of the Podolak decision, we noted that the case was consequently circum-seribed in future application. Id. n. 1. Relying upon this footnote and our decision in Coones v. FDIC, 796 P.2d 808 (Wyo.1990), the State contends that this Court has already decided that proceeds from the sale of cattle are not exempt under § 1-15 102(a)(vi).

[¶ 13] In Coones, the general exemption statutes, Wyo. Stat. Ann. § 1-20-101 through 1-20-110, did not provide any provision for earnings exemption; however, the appellants in the case contended that a transferred application of the garnishment statute execution, § 1-15-102, provided a basis for allowing a rancher or farmer to claim a seventy-five percent exemption of proceeds from the sale of non-purchase money livestock and seventy-five percent of the value of crops planted and livestock born after the security interest was perfected. Id. at 805. Coones rejected appellant's contention, first, by noting that Podolak provided no precedent because the statute addressed in it no longer existed, and, secondly, because the statutory language "earnings for personal services" could not be interpreted to include any income other than that periodically payable by a third party. Specifically, Coones stated:

We find from a comparison of the changed phraseology that the broadly based rules found in earlier Wyoming law were constricted by the 1987 definition which itemizes a character of identical rights, e.g., wages, salary, commission, bonus and proceeds of any pension or retirement benefit or deferred compensation plan. Statutes are entitled to a reasonable interpretation and we consider the character of benefits clearly defined within a wage and salary characterization. Profits and business earnings are outside the meaning of wage and salary. This interpretation gathers support from the garnishment statute provision which recognizes an obligation to pay as being different from profit or business earnings which involve a right to receive. |
Appellants further contend that the word "otherwise" could suffice to provide entitlement for the broad character of rights found in Podolak to result from the prior statute. We cannot accept this thoughtful contention since its effect would be to disassociate the structure of the clause when relating to one character of exempt funds by adding an almost unlimited character of other funds which would have no particular validation within the constraints of a continuing wage garnishment statutory system. We limit any application of "otherwise" in W.S. 1-15-102(a){vi) to a character of third-party obligations payable for services rendered by the claimant for exemption. Intrinsic to the meaning of W.S. 1-15-102 are the provisions of W.S. 1-15-408 which are related to earnings for personal services periodically payable. Business profits and receipts from crop and livestock simply cannot be logically impressed with the garnishment concept.

Id. at 805-06.

[¶ 14] Although Coones involved bank-ruptey issues, this last holding broadly sweeps and does not permit McManaman's argument to prevail. MeManaman's bank account funds are not traceable to a third-party obligation payable periodically. Additionally, if the exemption did apply when the funds were owing, McManaman has not provided any argument or authority that the exemption was not extinguished upon payment of the earnings into his bank account. We, therefore, hold that McManaman's bank account funds are not exempt from the writ of garnishment and affirm the district court's order.