author: DAVIS, Judge:

text:
    2003 UT App 117
    STATE of Utah, Plaintiff and Appellee, v. Gustavo MORA, Defendant and Appellant.
    No. 20020095-CA.
    Court of Appeals of Utah.
    April 24, 2003.

      Susanne Gustin-Furgis, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Marian Decker, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before Judges DAVIS, GREENWOOD, and ORME.
   OPINION

DAVIS, Judge:

T1 Gustavo Mora (Mora) appeals the trial court's denial of his motion to withdraw his guilty plea to aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1999). We reverse and remand.

BACKGROUND

T2 Mora was charged with one count of aggravated robbery, a first degree felony, 'and theft from a person, a second degree felony. In separate proceedings, Mora was facing charges on two unrelated counts of aggravated robbery in Utah, and violation of a "three strikes" statute in California..

T8 At a change of plea hearing on April 20, 2001, Mora pleaded guilty to one count of aggravated robbery with a firearm enhancement. In exchange, the State agreed to drop the theft charge and the two unrelated aggravated robbery charges.

T 4 During the plea colloquy, the elements of and factual basis for the aggravated robbery charge were discussed as follows:

THE COURT: You're charged with an aggravated robbery, that on other [sic] about October 11th, 2000, that you, with the use of a dangerous weapon, by force or fear-I don't know the name of the complaining witness.
Can you give me any more about the cireumstances?
[DEFENSE ATTORNEY]: Your Hon- or, I put in the factual bases as follows: On October 11th, 2000, in Salt Lake County, I took personal property from the vie-tim, and I had-and possessed a gun that got the victim to give me the money.

T5 When the trial court asked Mora whether he committed the crime, Mora answered, "I plead guilty to that one right there, to the first degree." Later, Mora signed the Affidavit of Defendant (affidavit) in open court and stated again, "I pled guilty" to aggravated robbery.

T6 The trial court also questioned Mora about why he was pleading guilty. Mora said he was pleading guilty "[blecause I want to go out to the prison as soon as possible. I don't like that county jail.... I just want to-that's the only reason I'm taking this, because I'm not comfortable being in the county jail." The trial court answered:

[The jail shouldn't have anything to do [with] it, and I'll tell you why. Because if you want to just take the trial and try them all ... you will stay in the county jail the whole time you're trying them and then you'll still be in the county jail for another six weeks to get a presentence report. So there is no way you're getting out of the county jail today by whatever decision you want to make.

T7 Mora responded, "[TJhat's what I have in my mind, that I'm going to prison today.... So if it ain't going to happen that way, I'm going to take everything to trial." Finally, when the trial court and the prosecution determined that Mora could receive a post-sentence report and be sent to prison immediately, Mora accepted the plea agreement.

T 8 During the colloquy, the trial court and Mora also discussed California's ability to sentence Mora consecutively on the "three strikes" charges. The discussion went as follows:

THE COURT: Okay.... [There's no way that Utah can control California and no way that California can control Utah. They each have independent convictions.
[MORA]: So most likely I'm going to go do the five to life in seven to ten years, and then they'll pick me up, or what?
THE COURT: Well, that will be up to them to decide.
[MORA]: To who?
THE COURT: California. California can put a hold on you and they can take you after you served your Utah time. They could also say, okay, he's served six years in Utah, we're going to terminate his parole unsuccessful. They could do that.

T9 Later, Mora said, "I'll take [the ten years to life sentence] because I'm going to this prison, and from here, whenever I get out, I'm going over [to California] and they're going to give me [twenty-five] to life."

{10 During the colloquy, the trial court did not tell Mora that, if he chose to go to trial, the State carried the burden of proving him guilty beyond a reasonable doubt.

T11 At the conclusion of the colloquy, Mora signed the affidavit. Prior to asking Mora to sign the affidavit, the trial court asked Mora whether he was satisfied with his counsel's representation and whether he had any questions. Mora responded that he was satisfied and that he did not have any questions. The trial court did not ask Mora whether he had read and understood the affidavit. The trial court then witnessed Mora sign the affidavit.

T12 The affidavit lists the elements of aggravated robbery as: "(1) any person, (2) who takes personal prop{erty],; (8) by use of foree and fear, (4) with [a] gun." It also describes the factual basis for the charge as: "On October 11, 2000, in Salt Lake County, I took personal property from the victim and I had and possessed a gun that got the victim to give me the money." The affidavit further provides that Mora entered "this plea voluntarily and with knowledge and understanding" that, among other things, if he pleads not guilty and goes to trial, "the State of Utah will have the burden of proving each element of the charge beyond a reasonable doubt;" if he is "on probation or parole, or awaiting sentencing on another offense of which [he] hals] been convicted or to which [he] hals] pled guilty, [his] plea in the present action may result in consecutive sentences being imposed;" and "by entering such plea, [he is] admitting and dofes] so. admit that [he] hals] committed the conduct alleged and that [he is] guilty of the erime for which [his] plea is entered."

I 13 On May 11, 2001, Mora filed a motion to withdraw his guilty plea. Mora argued that his plea should be withdrawn because the trial court failed to strictly comply with rule 11 of the Utah Rules of Criminal Procedure. Specifically, Mora claimed the trial court failed to: (1) state the elements of aggravated robbery and how Mora's conduct related to those elements; (2) inform Mora that, if he chose to go to trial, the State bore the burden of proving his guilt beyond a reasonable doubt; (8) inform Mora that, by pleading guilty, he was admitting guilt to all elements of aggravated robbery; (4) inform Mora that his plea could result in the imposition of consecutive sentences with his California charges; and (5) inquire about Mora's state of mind.

{14 The trial court conducted a motion hearing on October 24, 2001. In an order dated December 12, 2001, the trial court denied Mora's motion, holding that Mora "was properly apprised [sic] of all of his constitutional rights" because, "[tlaken together, the oral colloquy and the [affidavit] contain a complete recitation of [Moral's constitutional rights." Specifically, the trial court held that: (1) the record does not support Mora's contention that "promises were made to him relative to his parole status in California;" (2) Mora's "admission to taking personal property from the victim by use of a gun is a sufficient factual basis for acceptance of a guilty plea;" (8) Mora's "demeanor ... and his signature ... evidenced a knowing and voluntary waiver of his constitutional rights;" and (4) Mora entered the guilty plea "with full knowledge of the consequences of that plea, and of the elements of the offense."

115 On January 9, 2002, Mora appealed the trial court's decision.

ISSUE AND STANDARD OF REVIEW

1716 Mora claims the trial court erred by denying Mora's motion to withdraw his guilty plea. The "withdrawal of a plea of guilty is a privilege, not a right ... [and] is within the sound discretion of the trial court." State v. Gallegos, 738 P.2d 1040, 1041 (Utah 1987). Thus, "[wle review a trial court's denial of a motion to withdraw a guilty plea under an abuse-of-discretion standard." State v. Blair, 868 P.2d 802, 805 (Utah 1993).

ANALYSIS

1 17 Mora argues the trial court abused its discretion by denying his motion to withdraw his guilty plea because his guilty plea was taken in violation of rule 11 of the Utah Rules of Criminal Procedure.

118 "The purpose of rule 11 is to ensure that a defendant knows of his or her rights and thereby understands the consequences of a decision to plead guilty." State v. Martinez, 2001 UT 12, ¶ 22, 26 P.3d 203. Accordingly, "[rlule 11(e) squarely places on trial courts the burden of ensuring that constitutional and [rJule 11(e) requirements are complied with when a guilty plea is entered." State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987) (footnote added). In other words, "Tthe trial judge bears the burden of establishing, on the record, strict compliance with [rlule l1(e)" State v. Penman, 964 P.2d 1157, 1160 (Utah Ct.App.1998). "However, 'strict compliance can be accomplished by multiple means so long as no requirement of the rule is omitted and so long as the record reflects that the requirement has been fulfilled" Id. (quoting State v. Maguire, 830 P.2d 216, 218 (Utah 1991)).

119 A sufficient affidavit may be used to promote efficiency during a plea colloquy. See Gibbons, 740 P.2d at 1313. However, "an affidavit should be only the starting point, not an end point, in the pleading process." Id. "It is critical ... that strict [rJule 11 compliance be demonstrated on the record at the time the guilty or no contest plea is entered." State v. Smith, 812 P.2d 470, 477 (Utah Ct.App.1991). "Therefore, if an affidavit is used to aid [rlule 11 compliance, it must be addressed during the plea hearing." Id. "The trial court must conduct an inquiry to establish that the defendant understands the affidavit and voluntarily signed it." Id.; see also State v. Maguire, 830 P.2d 216, 217, 1992 Utah LEXIS 29, No. 900555, *2-3 (Utah 1992) (holding a plea affidavit is "properly incorporated in the record" when "the trial judge ascertains in the plea colloquy that the defendant has read, has understood, and acknowledges all the information contained therein"). Then, "[aloy omissions or ambiguities in the affidavit must be clarified during the plea hearing, as must any uncertainties raised in the course of the plea collo-guy." Smith, 812 P.2d at 477. Thus, "[the efficiency-promoting function of the affidavit is thereby served, in that the court need not repeat, verbatim, [rlule 11 inquiries that are clearly posed and answered in the affidavit, unless [rlule 11 by its terms specifically requires such repetition." Id.

120 In this case, the affidavit was not properly incorporated into the record. At the end of the plea colloquy, the trial court had Mora sign the affidavit. The trial court then stated on the record that Mora, "in open court," signed the affidavit. However, the trial court made no inquiry into whether Mora had read, understood, and acknowledged the affidavit. Thus, the affidavit was not properly incorporated into the record, and we may not consider it when determining whether the record establishes that the trial court strictly complied with rule 11.

%21 Without considering the affidavit, the record shows that, during the plea | colloquy, the trial court did not inform Mora that, if he chose to go to trial, the State would bear the burden of proving each element of aggravated robbery beyond a reasonable doubt. Under rule l1(e), the trial court "may not accept the plea" until it has found that "the defendant understands ... that upon trial the prosecution would have the burden of proving each of [the crime's] elements beyond a reasonable doubt." Utah R.Crim. P. l1(e)(4)(A). Thus, since the trial court failed to determine whether Mora understood that the State carried the burden of proving him guilty beyond a reasonable doubt, the trial court failed to strictly comply with rule 11.

122 The State argues that even if the affidavit was not properly incorporated, we should still affirm the trial court's decision to deny Mora's motion to withdraw his guilty plea because any error committed by the trial court was harmless. Rule 30 of the Utah Rules of Criminal Procedure provides that any error "which does not affect the substantial rights of a party shall be disregarded." Utah R.Crim. P. 30(@). In this case, we decline to determine whether the harmless error doctrine applies to rule 11 violations. During the plea colloquy, the trial court failed to inform Mora that, if he chose to go to trial, the State carried the burden of proving him guilty beyond a reasonable doubt. The right to require the State to prove guilt beyond a reasonable doubt is guaranteed by the due process clauses of the Utah and the United States Constitutions. See State v. Lopes, 1999 UT 24, ¶ 13, 980 P.2d 191 (holding that "as both a state and federal constitutional matter, we conclude that due process requires that the prosecution prove every element of the charged crimes beyond a reasonable doubt" (citing Utah Const. art. I, § 7; U.S. Const. amends. V, XIV) (other citations omitted)). "It is well established under Utah law that we will presume harm ... when a trial court fails to inform a defendant of his constitutional rights under rule 11." State v. Hittle, 2002 UT App 134, ¶ 9, 47 P.3d 101 (applying plain error test to rule 11 violation), cert. granted, 59 P.3d 603 (Utah 2002); see also State v. Dean, 2002 UT App 323,¶ 12, 57 P.3d 1106 (same), cert. granted, 64 P.3d 586, 2003 Utah LEXIS 19, No. 20020952 (Utah 2003); State v. Tarnawiecki, 2000 UT App 186, ¶ 11, 5 P.3d 1222 (same). We presume harm because, "by not knowing which rights a defendant is waiving, the defendant cannot make a fully informed decision." Hittle, 2002 UT App 134 at ¶ 10, 47 P.3d 101. "If the defendant is not fully informed of his rights prior to pleading guilty, then the guilty plea cannot be voluntary. We cannot accept an involuntary guilty plea and still claim to have done justice." Id. Therefore, since the trial court failed to inform Mora of his constitutional right that the State must prove him guilty beyond a reasonable doubt, we presume harm and do not consider whether the harmless error doctrine applies to rule 11.

CONCLUSION

T23 We hold the trial court exceeded its discretion by denying Mora's motion to withdraw his guilty plea. The trial court that accepted the plea failed to strictly comply with rule 11 when it accepted Mora's guilty plea without correctly incorporating the affidavit into the record or establishing elsewhere on the record that Mora knew the State was required to prove him guilty beyond a reasonable doubt. Furthermore, we decline to consider the harmless error doctrine because we presume the error was harmful in this case. Therefore, we vacate Mora's conviction and allow him to withdraw his guilty plea.

124 We reverse and remand for proceed- © ings consistent with this opinion.

1 25 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      . Judge Young presided over the change of plea hearing and Judge Burton presided over the hearing concerning Mora's motion to withdraw his guilty plea.

      . Before a trial court may accept a guilty plea, rule 11(e) requires the court to find, among other things:
      (2) the plea is voluntarily made;

      (4)(A) the defendant understands the nature and elements of the offense to which the plea is entered, that upon trial the prosecution would have the burden of proving each of those elements beyond a reasonable doubt, and that the plea is an admission of all those elements;
      (B) there is a factual basis for the plea. ...;
      (5) the defendant knows the minimum and maximum sentence, and if applicable, the mini-reum mandatory nature of the minimum sentence, that may be imposed for each offense to which a plea is entered. Utah R.Crim. P. 11(e)(2), (4)-(5).

      . Because our decision that the trial court failed to strictly comply with rule 11 by accepting Mora's guilty plea without informing him that the State had the burden to prove him guilty beyond a reasonable doubt is dispositive, we need not address Mora's other arguments. See, e.g., State v. Heaton, 958 P.2d 911, 919 (Utah 1998) (holding that where one argument is dis-positive of the appeal, we need not address the defendant's other arguments).

      . Prior to the creation of the strict compliance test in Gibbons, Utah appellate courts applied a "record as a whole" test to rule 11. See State v. Maguire, 830 P.2d 216, 217 (Utah 1991) (per curiam). As long as the "record as a whole" test was used, the harmless error doctrine clearly applied to rule 11 violations. See State v. Kay, 717 P.2d 1294, 1301 (Utah 1986) (holding the harmless error doctrine applies to rule 11 violations because otherwise "we would encourage defendants ... to attack their convictions for purely tactical reasons, either by direct appeal or by seeking habeas corpus long after the fact), overruled in part on other grounds by State v. Hoff, 814 P.2d 1119, 1123 (Utah 1991). However, it is not clear whether the harmless error doctrine continues to apply to rule 11 violations after Gibbons. Also, the issue of whether the defendant would have entered the plea but for the error would, in most cases, turn in part on the defendant's subjective assertions.


source: Caselaw Access Project

author: LEHMAN, Justice.

license: Public Domain

text:
    2003 WY 68
    John E. McGEE and Betty A. McGee Trustees of the McGee Mineral Trust dated January 15, 1992, and Allen Clark, a/k/a Melvin Allen Clark, Appellants (Plaintiffs), v. CABALLO COAL COMPANY, Appellee (Defendant).
    No. 02-109.
    Supreme Court of Wyoming.
    May 29, 2003.

      Charles R. Hart of Hart & Beisher, Sheridan, WY, Representing Appellants.
    Dan B. Riggs of Lonabaugh and Riggs, Sheridan, WY, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶1] This is an appeal from summary judgment entered in favor of appellee Cabal-lo Coal Company (CCC) and against appellants John E. McGee and Betty A. McGee, Trustees of the McGee Mineral Trust dated January 15, 1992, and Allen Clark (collective, ly appellants). In granting summary judgment, the district court ruled that appellants' predecessors had conveyed the rights to coalbed methane gas (CBM) when they transferred certain real property located in the Fort Union formation of the Powder River Basin of Wyoming to CCC's predecessors. Upon review, we reverse.

ISSUE

[¶2] Appellants present the following issue:

Does a conveyance of "all coal and all other minerals ... contained in or associated with coal and which may be mined and produced with coal which Grantor owns or holds in said lands" convey coalbed methane gas, or does a reservation of "oil, gas and other minerals" reserve coalbed methane gas?

CCC styles the issue before this court as:

Did the 1978 warranty deed between McGees and Carter Oil Company and the 1973 warranty deed between Clarks and Carter Oil Company convey coalbed methane underlying the described lands?

FACTS

[¥3] On December 17, 1978, John E. McGee and Betty A. McGee issued a warranty deed conveying to Carter Oil Company the surface estate and any interests in coal that they may have or hold in certain real property located in Campbell County for an amount of $340,000.00 and a two percent per ton royalty on certain mined coal. The McGees did not own any coal rights with respect to this land because these rights had been reserved to the United States in the original patents. On this same date, Melvin D. and Ethel L. Clark conveyed to the Carter Oil Company, also via warranty deed, the surface estate in other real property for $1,510,000.00 but reserved the coal rights in this land. These warranty deeds were issued pursuant to prior agreements.

[¶4] Pertinent parts of the agreements set forth:

Grantor agrees to grant and convey good and merchantable title to said lands to Grantee ... together with all coal and all other minerals metallic or non-metallic, contained in or associated with coal and which may be mined and produced with coal which Grantor owns or holds in said lands[.] ... [EJxcepting and reserving to Grantor all oil, gas, and other minerals in said lands which Grantor now holds, other than those specified above to be conveyed to Grantee and excepting all coal in the SE % of See. 5, Township 48 North, Range 70 West [NEZNE4 of Section 24, Township 48 North, Range 71 West].

The warranty deeds both state in applicable part:

... hereby releasing and waiving all rights [to the lands described above] together with all coal and all other minerals, metallic or nonmetallic, contained in or associated with coal and which may be produced with coal which Grantor owns or holds in said lands.] ... EXCEPTING AND RESERVING to Grantor all oil, gas and other minerals in said lands which Grantor now owns, other than those included above in the conveyance to Grantee, and excepting all coal in the SE%4 of See. 5, Township 48 North, Range 70 West [NEZNE4 of Seetion 24, Township 48 North, Range 71 West].

Further, the warranty deeds contain a non-merger clause which states: "This deed is executed pursuant to agreement between Grantor and Grantee dated December 17, 1973, the provisions of which are not merged herein."

[¶5] Appellants are the successors in interest to John E. and Betty A. McGee and Melvin D. and Ethel L. Clark, while CCC is the successor in interest of Carter Oil Company. On June 21, 2001, appellants filed a declaratory judgment and quiet title action seeking a determination that the McGees and Clarks reserved CBM with respect to the warranty deeds. The parties then filed cross-motions for summary judgment. Upon consideration and hearing, the district court entered summary judgment in favor of CCC and against appellants. This appeal followed.

STANDARD OF REVIEW

[16] Our standard of review in summary judgment cases is well established.

Summary judgment motions are determined under the following language from W.R.C.P. 56(c):
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The purpose of summary judgment is to dispose of suits before trial that present no genuine issue of material fact. Moore v. Kiljander, 604 P.2d 204, 207 (Wyo.1979). Summary judgment is a drastic remedy designed to pierce the formal allegations and reach the merits of the controversy, but only where no genuine issue of material fact is present. Weaver v. Blue Cross-Blue Shield of Wyoming, 609 P.2d 984, 986 (Wyo.1980). A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Schuler v. Community First Nat. Bank, 999 P.2d 1303, 1304 (Wyo.2000). The summary judgment movant has the initial burden of establishing by admissible evidence a prima facie case; onee this is accomplished, the burden shifts and the opposing party must present specific facts showing that there is a genuine issue of material fact. Boehm v. Cody Country Chamber of Commerce, 748 P.24 704, 710 (Wyo.1987); Gennings v. First Nat. Bank of Thermopolis, 654 P.2d 154, 156 (Wyo.1982).
This Court reviews a summary judgment in the same light as the district court, using the same materials and following the same standards. Unicorn Drilling, Inc. v. Heart Mountain Irr. Dist., 3 P.3d 857, 860 (Wyo.2000) (quoting Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo.1999)). The record is reviewed, however, from the vantage point most favorable to the party who opposed the motion, and this Court will give that party the benefit of all favorable inferences that may fairly be drawn from the record. Garcia v. Lawson, 928 P.2d 1164, 1166 (Wyo.1996).

Garnett v. Coyle, 2001 WY 94, ¶¶ 3-5, 33 P.3d 114, ¶¶ 3-5 (Wyo.2001).

DISCUSSION

[¶7] Initially, we recognize that the facts and issue presented in this case are akin to those which existed in the case of Newman v. RAG Wyoming Land Co., 2002 WY 132, 53 P.3d 540 (Wyo.2002), recently before this court. In Newman, we considered whether or not CBM had been conveyed or reserved by landowners in a 1974 land conveyance. In Newman, the grantors owned both the surface and mineral estate in certain Campbell County property and deeded the surface of such property and "coal and minerals commingled with [the] coal" to a neighboring coal mine operator reserving all "oil, gas, and other minerals" not otherwise conveyed. Newman, at ¶ 1.

[¶8] In Newman, we began our analysis by setting forth the historical background of CBM. In particular, this court recognized that CBM had been well known for over a century and had long been considered a dangerous waste product of coal mining until the 1970s. At that time, the value of CBM was realized resulting in concerted research and development in the area through the issuance of government grants. Nevertheless, it was not until the early 1990s that techniques were perfected for the efficient development of CBM. Prior to this time, CBM was simply allowed to escape from the coal in the course of open pit surface mining, and no attempt was made to capture it as a valuable resource. Newman, at ¶¶ 6-8.

[¶9] Newman further explored the chemistry and composition of CBM. In doing so, we recognized that CBM is chemically identical (CH,) to gas produced through conventional methods. Both CBM and gas produced from conventional methods are known as "natural gas" and emanate from the decay of organic material over time under great pressure and temperature. CBM gas exists in coal in three basic states: as free gas; as gas dissolved in the water in coal; and as gas "absorbed" on the solid surface of the coal. Newman, at T9. Many of these facts are also established in this case through the affidavit of Jimmy Goolsby, a consulting geologist, submitted by appellants in support of their summary judgment motion and the affidavit of Anthony W. Gorody, an earth science professional, proffered by CCC in support of its motion for summary judgment.

[T10] Finally, this court explained that the ultimate issue to be resolved in Newman was whether the parties to the deed in question intended CBM to be conveyed along with the coal estate or reserved to the grant- or as part of the oil and gas estate. Newman, at TT11 and 14. We are faced with exactly the same conclusive issue in this case.

[¶11] In making such a determination, we apply the following standards:

"According to our established standards for interpretation of contracts, the words used in the contract are afforded the plain meaning that a reasonable person would give to them. When the provisions in the contract are clear and unambiguous, the court looks only to the 'four corners' of the document in arriving at the intent of the parties. In the absence of any ambiguity, the contract will be enforced according to its terms because no construction is appropriate." Amoco Production Company v. EM Nominee Partnership Company, 2 P.3d 534, 539-40 (Wyo.2000) (citations omitted).
Assignments are contracts and are construed according to the rules of contract interpretation. The determination of the parties' intent is our prime focus in interpreting or construing a contract. If an agreement is in writing and its language is clear and unambiguous, the parties' intention is to be secured from the words of the agreement. When the agreement's language is clear and unambiguous, we consider the writing as a whole, taking into account relationships between various parts. In interpreting unambiguous contracts involving mineral interests, we have consistently looked to surrounding circumstances, facts showing the relations of the parties, the subject matter of the contract, and the apparent purpose of making the contract.

Boley v. Greenough, 2001 WY 47, ¶¶ 10-11, 22 P.3d 854, ¶¶ 10-11 (2001) (some citations omitted). Although substantial disagreement exists over the meaning of the deed, neither party suggests the language of the deed is ambiguous. Differing interpretations of contracts alone do not constitute ambiguity requiring extrinsic evidence. Moncrief v. Louisiana Land and Exploration Company, 861 P.2d 516, 524 (Wyo.1993).

We must first examine the terms of the deed and give them their plain and ordinary meaning. Wolter v. Equitable Resources Energy Company, Western Region, 979 P.2d 948, 951 (Wyo.1999); Pete Lien & Sons, Inc. v. Ellsworth Peck Construction Co., 896 P.2d 761, 763 (Wyo.1995). Plain meaning is that "meaning which [the] language would convey to reasonable persons at the time and place of its use." Moncrief, 861 P.2d at 524.

Newman, at ¶¶ 11-12 (emphasis added). See also Wadi Petroleum, Inc. v. Ultra Resources, Inc., 2003 WY 41, ¶ 11, 65 P.3d 703, ¶ 11 (Wyo.2003). We also recognized in Newman, at ¶¶ 9 and 27, when faced with cireumstances like those present here, we must focus on the general intent of the parties, concentrating on the purpose of the grant in terms of respective manner of enjoyment of surface and mineral estates and the exploitation of the mineral resources involved.

[T12] The language of the warranty deeds in this case convey good and merchantable title to the lands involved "together with all coal and all other minerals, metal-lie or non-metallic, contained in or associated with coal and which may be produced with coal" owned or held by the grantors in those lands. These warranty deeds also reserved to the grantors "all oil, gas and other minerals in said lands" which the grantors then owned, "other than those included above in the conveyance to Grantee." One of the two warranty deeds also reserved "all coal" in the involved piece of real property, preserving such rights in the grantors. The language utilized in the agreements entered into between the parties varies slightly from that utilized in the warranty deeds by specifying that the grantors would grant and convey good and merchantable title to the lands "together with all coal and all other minerals metallic or non-metallic, contained in or associated with coal and which may be mined and produced with coal" which grantors owned or held in such lands.

[¶13] As in Newman, we start by concluding that CBM is a mineral under Wyoming law. Newman, at ¶ 13 and those cases cited therein. However, like Newman, this conclusion does little to resolve the dispute before us because "minerals" are both granted and reserved. Likewise, it is clear that CBM is contained in or associated with coal. As noted above, CBM exists in coal in three basic states. Newman, at ¶ 9. Expert testimony in this case, submitted by both parties via affidavits, establishes this. These affidavits were consistent and not in dispute. Dr. Gorody specified that CBM can be "physically absorbed onto the surface area of the coal matrix, and is an integral part of the organic coal structure," that CBM "is contained in each coal seam of the Fort Union formation," and that CBM "is physically trapped in the coal seams of the Fort Union formation ..." The affidavit of Dr. Goolsby further confirms this fact. In accord see Amoco Prod. Co. v. Southern Ute Indian Tribe, 526 U.S. 865, 873, 119 S.Ct. 1719, 1724, 144 L.Ed.2d 22 (1999); Carbon County v. Union Reserve Coal Co., 271 Mont. 459, 898 P.2d 680, 683 (1995); United States Steel Corp. v. Hoge, 503 Pa. 140, 468 A.2d 1380, 1382 (1983).

[¶14] However, we are faced with a somewhat more difficult proposition when determining whether CBM "may be mined and produced with coal" as specified within the warranty deeds and agreements at issue. Obviously, these terms must be given their plain and ordinary meaning to reasonable persons at the same time and place of their use-namely, 1978 in the Fort Union formation of the Powder River Basin of Wyoming.

[T15] In Newman, this court was faced with a similar determination in rendering a conclusion as to whether or not CBM "may be mined or extracted in association" with coal or "in conjunction with coal mining operations." Newman, at ¶¶ 15-18. In that case, we stated:

The coal operator argues that production of gas has been considered "mining" relying on Coronado Oil Company v. Grieves, 603 P.2d 406 (Wyo.1979), Amoco Production Company v. Guild Trust, 636 F.2d 261, 263-65 (10th Cir.1980), and the language of oil and gas leases, including those issued by the landowners in this case. While those references certainly establish that oil and gas production through the drilling of wells has been considered "mining," they do not answer the question posed in this case because all agree that, in 1974 when the warranty deed in question was drawn, any gas found in the coal seam was not mined through a well bore but was ventilated or wasted while the coal was produced by excavation in the course of surface mining. In addition, the minerals conveyed by the language of the deed were oﬁly those mined "in association therewith or in conjunction with such coal operations." Webster's New World Dictionary confirms the ordinary meaning of "in asso-clation" and "in conjunction" to be "together." No party contends coalbed methane is somehow captured together with the coal as it is mined. Rather, it is released and escapes during the mining process. Southern Ute Indian Tribe, 526 U.S. at 873, 119 S.Ct. 1719. In the case of underground mines, it must be ventilated. United States Steel Corporation v. Hoge, 503 Pa. 140, 468 A.2d 1380, 1382 (1983).
Is the plain meaning of "extracted" the same as "released," "escaped," or "ventilated"? It is obvious these words connote different actions, and the distinctions between them are crucial to determining the intent of the parties to this deed. Webster's New World Dictionary confirms that difference by defining (1) "extract" as "to draw out by effort; pull out" and "to remove or separate (metal) from ore"; (2) "release" as "to set free"; and (8) "ventilate" as "to provide with an opening for the escape of air, gas, etc." Under the plain meaning of the terms chosen by the parties to the deed, we cannot conclude they intended to include coalbed methane gas as a mineral "mined or extracted in association therewith or in conjunction with such coal operations" when it can only be produced through wells as any other gas.
We could end the inquiry at this point. However, because of the importance of the issue of the ownership of coalbed methane in general and the extensive consideration of this issue by other courts and commentators which we find helpful and consistent with our initial conclusion, further discus-gion is warranted.
The coal operator poses a creative argument suggesting that, because coalbed methane can most efficiently be produced in advance of the mining operations thereby reducing the water the mine must contend with and making the mine more economically successful, it is mined or extracted "in association therewith" or "in conjunction with" coal mining operations. Two problems exist with that argument. First, the gas production does not occur automatically in the process of overburden and coal excavation and removal. Instead, it only occurs when and if the coal operator decides to undertake gas well drilling in advance of the mine face. Second, such "mining" techniques-the coordination of well drilling and mine exeavation-did not exist until twenty years after the deed in question was drawn which poses the broader question in this case. How is the parties' intent to be determined when minerals become valuable long after a conveyance by (1) discovery of new methods of production; (2) changes in economics making production of a previously known, but unwanted, mineral profitable; (8) or discovery of the presence of minerals not previously known to exist? Obviously, the language of the particular documents involved af-feets the answer to this question on a case-by-case basis.

Id. (footnote omitted.)

[116] CCC, like the coal operator in Newman, contends that CBM is "mined" as a matter of law and industry usage because CBM can be extracted through a well bore. In support of this contention, CCC cites the cases of Coronado Oil Co. v. Grieves, 603 P.2d 406, 411 (Wyo.1979), Amoco Prod. Co. v. Guild Trust, 636 F.2d 261, 265 (10th Cir.1980) and City of Evanston v. Robinson, 702 P.2d 1283, 1286 (Wyo.1985), along with Wyo. Const. art. 15, § 3; Wyo. Stat. Ann. § 89-13-102; and Williams and Meyers, Manual of Oil and Gas Terms 477 (11th ed. Lexis 2000). While oil and gas production through a well bore has been considered "mining," utilizing the same reasoning expressed in Newman quoted above, we must disagree such mining occurs "in conjunction with" or "in association" with the mining of coal.

[¶17] Moreover, our conclusion is supported by the expert affidavits of both Dr. Goolsby and Dr. Gorody submitted by the parties. In explaining the methods used to obtain CBM for sale commercially, Dr. Gools-by states:

All gas wells, whether drilled into sandstone, limestone, or other types of reservoir rock at any depth rely on a pressure differential to bring the gas into the well bore. The bore hole of any type of gas well serves as an escape route for gas under pressure to flow towards the surface. The pressure differential can be natural, caused by gravity, or it can be created by injecting water or carbon dioxide into gas holding formations. Likewise, the pressure differential can be achieved by removing or producing water from the gas well. Regardless of the method of exploiting or creating the pressure differential, all gas wells rely on this pressure differential. An accurate description of the production method for coalbed methane gas in the Powder River Basin is contained in the State of Wyoming Geological Survey's Information Pamphlet 7 (revised) entitled Coalbed Methane in Wyoming by Rodney DeBruin, Robert Lyman, Richard Jones and Lance Cook."

Dr. Goolsby continues,

Coal is mined by breaking it up and removing it from the earth with machinery. In the Powder River Basin in Wyoming and Montana, coal is removed by a process of open pit mining. This process does not allow the economic capture of coalbed methane gas. Rather, as the coal seam is exposed, and removed, essentially all of the coalbed methane gas is dissipated into the atmosphere. Only an infinitesimal amount of coalbed methane gas remains in the coal after production. With current technologies, there is no way to economically recover coalbed methane gas from coal during or after it has been removed from the earth.

Dr. Goolsby then concludes that he knows of no method whereby coalbed methane may be mined and produced when excavating coal so that CBM may be sold or have any commercial value.

[¶18] Dr. Gorody similarly indicates in his affidavit that CBM is inevitably present during the normal process of coal extraction because the decrease in pressure within the coal seam naturally causes CBM to be released from the coal. Dr. Gorody further clarifies that CBM is extracted from the coal seams in the Fort Union formation by lowering the hydrostatic pressure immediately surrounding the coal matrix and that the removal of water to recover CBM is a mining process. In addition, Dr. Gorody details:

Unconventional coalbed methane gas is physically trapped in the coal seams of the Fort Union formation and cannot be released until mined or extracted. The mining and extraction method generally employed by producers proceeds as follows. First, a well is drilled to the top of the Wyodak Anderson coal seam. Drilling is discontinued as soon as this thick coal seam (usually 75 to 200 feet thick) is reached. A steel casing string is then set and cemented in each well. Once the cement has set, drilling is resumed, and the coal seam interval is drilled until the base of the coal is reached. The interval between the base of the casing and the base of the coal is usually left encased, or "open hole." Accordingly, there are no other geological strata exposed in the well bore that could provide access to either water or gas. This confirms that coalbed methane is produced only from the coal seam and not from a different geological horizon.

[¶19] These statements confirm our recognition in Newman that the capture of CBM for commercial purposes does not occur automatically in the process of overburden and coal excavation and removal. It only occurs when and if the coal operator decides to undertake gas well drilling in advance of mining the actual coal. Newman, at ¶ 8. Therefore, we conclude, as we did in Newman, that given the plain meaning of the terms used in the subject agreements, the parties here did not intend to include CBM as a mineral "mined" with coal, as CBM can only be captured through the use of wells, as any other gas.

[¶20] Citing the expert affidavits submitted as noted above, CCC further argues that CBM is produced with coal. Indeed, CCC tenders that not only may CBM be produced with coal, it is impossible to prevent such production because it is a scientific fact that CBM is inevitably produced during the normal process of coal extraction as the decrease in pressure within the coal seam naturally causes CBM to be released from the coal. Further, in support of this argument, CCC points out that Webster's Ninth New Collegiate Dictionary defines the term "produced" as "to offer to view or notice [or] to give birth or rise to," which it asserts is consistent with its expressed position.

[¶21] We note that in rendering summary judgment in favor of CCC, the district court placed significance on the fact that given future technological advancements and developments, CBM "may" be mined and produced with coal when wells are drilled in advance of the mine face. However, this reasoning is effectively thwarted and must be considered inappropriate when it is recognized that the parties in 1973 clearly could not have had this manner of production in mind because it only became known long after the conveyance.

[T22] We also question whether CBM can be mined and produced with coal as expressed in both the warranty deeds and the agreements. Webster's Third New International Dictionary, Unabridged, defines the word "with" as "22) alongside of; near to . ¢) in the same direction ... 4c¢) in respect to: so far as concerns ... 7d) as a result of; ... because of ... 9d) at the same time as ..." Thus, as utilized in context with the cireumstances faced by the parties, we hold that the word "with," as was the case in Newman, connotes the ordinary meaning of "in association," "in conjunction" or "together." Again, CBM is not captured together with the coal as it is mined. Rather, it can only be captured prior to the mining process or it is released and escapes during the mining process. The most likely meaning of the word "with" as used by the parties, was meant to convey those minerals that could be actually mined together with coal. As CCC-like the coal operator in Newman-argues, common sense dictates that its predecessor, Carter Oil Company, intended to acquire and paid for all minerals that could be produced with the coal to avoid interference with its coal mining operations. We agree that was the grantee's likely intent, and certain minerals did exist which could have been produced with the coal and caused problems for the coal producer.

[¶23] As expressed by Dr. Goolsby:

I have considered the possible meaning of minerals contained in or associated with coal. Minerals contained in or associated with coal include pyrite, marcasite, and calcium carbonate. In 1975 I was employed mapping coal deposits in Wyoming for the U.S. Geological Survey. At that time there was a rumor that small traces of gold were or might be present in coal deposits.

However, CBM was not produced "with" the coal either in 1974 or today. In fact, in 1974, it was considered a waste product and a safety hazard. For similar reasons, it does not make sense that Carter Oil Company intended to purchase CBM in order to negate any lability for its release. Indeed, we provided in Newman at 1 30:

The coal operator strenuously argues the broad language of the warranty deed, "coal and minerals commingled with [the] coal," was intended to allow it to release the coalbed methane during the mining operation without liability. However, as noted by the Supreme Court:
The right to dissipate the CBM gas where reasonable and necessary to mine the coal does not, however, imply the ownership of the gas in the first instance. Rather, it simply reflects the established common-law right of the owner of one mineral estate to use, and even damage, a neighboring estate as necessary and reasonable to the extraction of his own minerals.
Southern Ute Indian Tribe, 526 U.S. at 879, 119 S.Ct. 1719 (citing Williams v. Gibson, 84 Ala. 228, 4 So. 350 (1888); Rocky Mountain Mineral Law Foundation, 6 American Law of Mining § 200.04 (2d ed.1997)). Other courts which have considered this issue agree the right to ventilate gas, which is an essential element of the right to mine, is not equivalent to ownership. NCNB Texas National Bank, N.A., 631 So.2d at 226. No one questions the coal owner's right to ventilate coalbed methane in the course of mining. "The grant of coal mining rights would be useless if it did not include the right to ventilate methane gas from the coal mining area." Id. at 228.

Furthermore, in this case with respect to one of the deeds, CCC cannot argue the grantee intended to protect its right to mine the coal because the coal owned by the grantor was specifically reserved and not conveyed. Thus, no potential for interference with the coal mining existed in any case.

[¶24] Finally, the McGees and Clarks expressly reserved "all oil, gas and other minerals in said lands which Grantor now owns, other than those included above in the conveyance to Grantee." Thus the only specific mention of the mineral "gas" is contained in the reservation. As we expressed in Newman at 1 32:

On the basis of the unambiguous language of the deed and the surrounding facts and cireumstances, we conclude the parties generally intended the coal to be conveyed and the gas, wherever it may be located within the property, to be reserved to the landowners. Coalbed methane, being a gas, remained the landowners' property. By this ruling, we do not intend to imply that, in all cireumstances, the conveyance of coal excludes the conveyance of the coalbed methane. Parties can certainly sever the coalbed methane from the remainder of the oil and gas estate and convey it separately. Such an explicit severance occurred in this case when the oil and gas lessee vertically segregated its oil and gas leasehold interest and assigned from the surface to 1,000 feet beneath the surface, which contained the coal seam, to Hi Pro. However, the warranty deed from the landowners to the coal operator in this case, which conveyed "all coal and minerals commingled with coal that may be mined or extracted in association therewith or in conjunction with such coal operations" but reserved all oil and gas, did not accomplish such a segregation.

CONCLUSION

[¶25] We hold that the district court improperly determined that summary judgment should be granted to CCC. The record before us does not present issues of material fact, and the warranty deeds are not ambiguous. Moreover, the undisputed facts in this case establish that appellants' predecessors could not have intended to convey CBM to CCC's predecessors, as the identity, value, or feasibility of production of CBM was unknown at the time of the conveyance and, therefore, appellants' predecessors likely had no intent at all with regard to the CBM in question. Thus, appellants are entitled to summary Judgment as a matter of law, rather than CCC.

[¶26] Reversed.

      . We again recognize that the warranty deeds contain a non-merger clause which states, "[this deed is executed pursuant to agreement between Grantor and Grantee dated December 17, 1973, fad the provisions of which are not merged herein." Nevertheless, we consider this language contained within the agreements in making our review of the surrounding circumstances, facts showing the relations of the parties, the subject matter of the contract, and the apparent purpose of making the contract as required under our applicable standard of review.


author: HILL, Chief Justice.

text:
    2003 WY 67
    Michael Duane ODEGARD, Appellant (Defendant), v. Brenda Kay ODEGARD, Appellee (Plaintiff).
    No. 02-138.
    Supreme Court of Wyoming.
    May 29, 2003.

      Peggy Taylor, Gillette, Wyoming, Representing Appellant.
    Robert W. Brown of Lonabough and Riggs, Sheridan, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶1] Appellant, Michael Duane Odegard (husband), seeks review of the district court's divoree decree, which ended the marriage between him and Appellee, Brenda Kay Ode-gard (wife). Husband claims that the district court: Erred in the division of the marital property; used inadmissible evidence in valuing property subject to division; failed to admit evidence pertinent to the property division; erred in awarding attorney's fees to wife; made mathematical errors in computing the property division; erred in requiring husband to pay 7% interest on the unpaid portion of the property settlement; and failed to credit husband in the property division for amounts paid to wife as support pending the finalization of the divorce.

[¶2] We will affirm.

ISSUES

[¶3] Husband presents these issues:

A. The district court erred in including in the division, property which was not a product of the marital union and was not acquired during the course of the marriage by the joint efforts of the parties.
1. It was error not to consider the testimony and letter of Theta Lester offered under the exception to hearsay rule.
2. The District Court erred when it failed to follow Wyoming Statute § 20-2-114 by not considering the condition in which the parties will be left and the burdens imposed on the property for the benefit of either party and children.
3. The Court erred in ignoring the parties' stipulation.
4, The District Court erred when it failed to follow Wyoming Statute § 20-2-114 by not considering "the party through whom the property was acquired. ..."
B. It was error for the District Court to partially consider the inadmissible appraisal of Bob Zabel in setting values on the Home Place.
C. The District Court erred in awarding attorney's fees of $5,000.00.
D. The District Court erred mathematically in making its division.
E. The District Court erred in requiring [husband] to pay seven per cent interest .on the property settlement, even though there was no evidence to support it.
F. The District Court erred in not applying the support paid to [wife] against the property settlement.
1. The support provided was more than [wife] needed to defend and carry on the case.
2. The court erred because it failed to consider the tax effects of the distribution.
3. The court erred in failing to consider the ability of [husband] to pay.
4. The court erred because it ignored its own temporary order.

Although wife does not provide a separate statement of the issues in her brief, we glean this as her rendition of the issues:

A. Husband's arguments ignore the standard of review.
B. The trial court may exercise wide discretion in dividing the parties' property and debts.
C. Property given to the parties by third persons is also properly subject to division.
D. The trial court properly refused to receive into evidence Theta Lester's "Disclaimer" letter.
E. The parties did not have a stipulation regarding ownership of or restrictions on the Recluse Place.
F. The trial court did not improperly consider the appraisal of wife's expert, Robert Zabel, in setting values on the Home Place.
G. The trial court did not err in awarding $5,000.00 in attorney's fees to wife.
H. The court did not abuse its discretion in ordering that the cash which husband is to pay to wife over a period of time bear interest at the rate of 7%.
I. The district court did not err in declining to count the temporary support paid to wife during the pendency of this action against the property settlement.
J. The trial court did not err by failing to consider the condition in which the parties will be left when it divided the property.

FACTS

[¶4] The parties were married on November 11, 1978. Throughout the marriage the parties lived on the Odegard family ranch. Husband worked side-by-side with his father on the ranch, doing ranch and farming work, while wife primarily worked in the home raising the children, although she did do some ranch work and worked part time outside the home on several occasions. Wife initiated the divorce proceedings; however, that was done at husband's insistence and because he did not want to continue the marriage.

[¶5] Although a number of issues are raised in this appeal, the focal point is the district court's decision to award wife a ranch property referred to as the "Recluse Place." Husband objects to wife's possession of what he considers Odegard "ancestral" lands, though wife made clear it is her desire and specific intention that the Recluse Place eventually go to the parties' sons when she no longer has need for the income she receives from that property.

[¶6] The district court found that the parties had acquired substantial real property during the marriage. They purchased the "Coones Place" in September of 1995, for $805,000.00. The down payment on the Coones Place, as well as the annual payments toward the mortgage on that property, were made with funds received by the parties during the marriage. During the marriage, the parties received several gifts of real property from husband's grandmother, Theta Lester, including a 310-acre tract of land known as the "Jones Place" in 1991, a 4/7 interest in the lands and dwellings constructed on the "Home Place" in 1991 (the Jones Place and the Home Place are known collectively as the "Home Place"), and a large tract of land known as the "Recluse Place" (also known as the "Lester Place") in 1998. The parties built a house on the Home Place using approximately $120,000.00 in funds deposited in an investment account by husband's father. Although that account was in the names of husband and his father, husband's father conceded that those funds were actually wages paid to husband during the course of the marriage.

[¶7] Husband received other gifts of land from his grandmother, which were made to him and his father, but did not include wife. Those properties were not included in the property division. f

[¶8] Wife had a close personal relationship with husband's grandmother, and the district court concluded that all gifts were made in an "intelligent and unequivocal fashion." The properties given as gifts to the parties by the grandmother were included in the property division over husband's objections.

[¶9] The district court concluded that the parties owned equity in the Coones Place of $587,192.00, the Recluse Place was worth $515,430.00, and the parties' interest in the Home Place was worth $114,000.00. In accordance with wife's request, but over husband's objection, the district court awarded the Recluse Place to wife and the Coones Place and the Home Place to husband. The district court found that:

In order to achieve equity in this case, it 'is necessary to set over to [wife] some of the parties' real property. The "Recluse Place" was not property which historically belonged to the Odegard family. It was, in fact, received by Theta Lester after her marriage to Mayne Lester, a marriage which occurred later in her life. It is . physically separated from the rest of the Odegard family lands. It is appropriate that [wife] receive this property as part of her share of the marital estate for the value stated above.

In addition to the Coones Place and the Home Place, husband was awarded all the cattle and ranch equipment. In order to make the property settlement equal, i.e., approximately 50/50, the district court made this adjustment: '

[Husband] should pay to [wife] the sum of $232,898.50 (one-half of $465,797.00) in ten (10) equal, annual installments of $33,159.51, said annual payments including interest at the rate of seven percent (7%), starting on December 1, 2002, and continuing on December 1 of each year thereafter until fully paid. [Husband] may prepay the principal balance due hereunder at any time, without penalty, provided, however, that any such prepayment will be credited first to acerued interest and then to princi- . pal.

STANDARD OF REVIEW

[¥10] There are few rules more firmly established in our jurisprudence than the proposition that the disposition of marital property is committed to the sound disceretion of the district court. Judicial discretion is made up of many things, including conclusions reached from objective criteria, as well as exercising sound judgment with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. We are required to ask ourselves whether the trial court could reasonably conclude as it did and whether or not any facet of its ruling was arbitrary or capricious. In accomplishing our review, we consider only the evidence in favor of the successful party, ignore the evidence of the unsuccessful party, and grant to the successful party every reasonable inference that can be drawn from the record. Holland v. Holland, 2001 WY 113, ¶ 8, 35 P.3d 409, ¶ 8 (Wyo.2001). Moreover,

We apply an abuse of discretion standard when reviewing divisions of marital property and, recognizing that property settlements present complex problems requiring the trial court to assess the respective merits and needs of the parties, we will not disturb the result absent a manifest abuse of that discretion. France v. France, 902 P.2d 701, 703 (Wyo.1995); Neuman v. Neuman, 842 P.2d 575, 578 (Wyo.1992); Kennedy v. Kennedy, 456 P.2d 243, 247 (Wyo.1964 [1969]). We will find an abuse of discretion when the disposition shocks the conscience of the court and appears so unfair and inequitable that reasonable persons could not abide it. France, 902 P.2d at 703.

Mann v. Mann, 979 P.2d 497, 500 (Wyo.1999).

DISCUSSION

Inclusion of Non-marital Property in the Property Division

[¶11] Husband contends that some of the property included as marital property was not a product of the marital union and was not acquired during the marriage by the joint efforts of the parties. As set out in the facts above, it was husband's contention that all gifts of real property made to husband and wife by husband's grandmother should not be included in the marital estate. Husband also contended that cattle owned by him at the time he entered into the marriage should be excluded from the property settlement. Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2001) is the primary source of guidance to the district court in this regard:

§ 20-2-114. Disposition of property to be equitable; factors; alimony generally.
In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorcee, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children. The court may decree to either party reasonable alimony out of the estate of the other having regard for the other's ability to pay and may order so much of the other's real estate or the rents and profits thereof as is necessary be assigned and set out to either party for life, or may decree a specific sum be paid by either party.

[T12] As was true in the Holland case, here husband's arguments are, for the most part, based upon a view of the record which gives credence only to the evidence favorable to husband, and ignores the evidence favorable to wife. Husband has the burden of demonstrating that the evidence adduced before the district court did not support the property division as a whole. Holland, ¶ 9. Wyo. Stat. Ann. § 20-1-201 (LexisNexis 2001) provides that married persons may retain as their separate estate, property that a spouse owns at the time of the marriage (together with its increased value). Property owned jointly by the parties is, as a general rule, considered a part of the marital estate. Indeed, although married persons may retain their separate estates while married, upon the filing of a complaint for divorcee, that right is adjusted. As a part of the divorce, the jurisdiction of the district court is invoked to provide for an equitable distribution of the property of the parties and, accordingly, a married person's separate property is subject to distribution by the court, as well as jointly owned property. Metz v. Metz, 2003 WY 3, ¶ 8, 61 P.3d 383, ¶ 8 (Wyo.2003); Mann, 979 P.2d at 499.

[¶13] Husband's argument in this regard is based largely upon the case of France v. France, 902 P.2d 701 (Wyo.1995). That case is faithful to the standard of review we have set out above, but is distinguishable from the cireumstances of the instant case. First, of course, it must be recognized that in France we affirmed the trial court's division of the Frances' marital property, finding that it was not an abuse of discretion. Thus, the facts emphasized in our opinion are those that were most favorable to the wife. Secondarily, the property at issue in the France case was inherited by wife, from her parents, a few years before the divorce, and the gift of stock from wife to husband was made on the assumption that the marriage would endure; was made almost exclusively to avoid estate taxes associated with the nearly simultaneous death of wife's parents, and wife wished to preserve that inheritance for the benefit of the parties' daughter, who was unable to provide for herself. We held that the property division was "fair, just, and manifested an exercise of discretion that is unassailable." France, 902 P.2d at 706. As our further discussion will bear out, the property division fashioned by the district court in the instant case was designed to implement as nearly as possible a 50/50 split, and is also "fair and just, and manifested an exercise of discretion that is unassailable."

Theta Lester's Letter

As set out more fully above, husband's grandmother made gifts of real property to the parties. At trial, husband offered. as evidence a letter purportedly written by Theta Lester. The letter is not dated and reads as follows:

I Theta H. Lester gifted and deeded land to my grandson Michael D. Odegard and his wife Brenda K. Odegard with the intention that it would not be sold or divided. It was also my intention that Brenda would not get any of the land in case of divorce. Her name was added as an estate planning tool to allow for a larger gift.

The district court declined to admit the letter as evidence. It is agreed by both parties that the letter constitutes hearsay evidence and is in the nature of parol evidence. The admission of evidence, including the admission of hearsay, is within the sound discretion of the trial court, and we will not disturb evidentiary rulings unless a clear abuse of discretion is demonstrated. Young v. HAC, LLC, 2001 WY 50, ¶ 6, 24 P.3d 1142, ¶ 6 (Wyo.2001).

[¶15] Husband contends that the letter was admissible because it met the requirements of W.R.E. 804(b)(6) (also see W.R.E 803(24)):

Rule 804. Hearsay exceptions; declar-ant unavailable.
(b) Hearsay Exceptions.-The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(6) Other Exceptions-A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Although the letter may have had some marginal utility as evidence of a material fact, the deeds signed by Lester were unequivocal and were the most probative evidence on point. Moreover, the letter lacked the requisite cireumstantial guarantees of trustworthiness. In addition to the fact that the letter was not dated, husband conceded that he wrote the body of the letter, and his grandmother signed it. The record bears out the district court's conclusion that Lester knew what she was doing, and the consequences of those gifts and the deeds should be taken at face value, ie., that the gifts were marital property. See Snyder v. Lovercheck, 992 P.2d 1079, 1086 (Wyo.1999) (extrinsic evidence not admissible to contradict plain meaning of terms used). The district court did not err in disallowing the letter as evidence contradicting Theta Lester's gifts.

Failure to Consider Condition in Which the Parties Will be Left by the Divorce

[¶16] Wyo. Stat. Ann. § 20-2-114 requires that the district court consider the condition in which the parties will be left by the divorcee. The district court made a specific finding in this regard, noting that husband would continue to have a substantially higher income than wife, who works as a bank employee. In 2000, the parties enjoyed an adjusted gross income of over $300,000.00, most of which will continue to go to husband.

[¶17] Husband contends that the Recluse Place is an integral part of the family ranching operation and will work a hardship on him. Perhaps more to the point, because no "hardship" to husband is evident in the record, he contends that, "[iln one devastating blow, the District Court ended a tradition in the Odegard family ranch being passed down to the boys. Giving [wife] the Recluse place effectively took out 3,735 acres of ranching land out of the family. The ruling may have ruined her son[s'] chances at becoming ... rancher[s] as well." As we have noted above, the property division was equitable in all respects, and the district court did not abuse its discretion in fashioning a division that provided some security for wife in the form of the Recluse Place. However, it is significant that husband ignores that wife specifically testified that she intended to pass on the ranch to "the boys," who were her sons too, and the likelihood of them continuing in the ranch business does not appear any less likely with the ranch in wife's hands, than it was when in husband's hands.

Did the District Court Err in Ignoring the Parties' Stipulation

[¶18] Only a brief comment is required with respect to this argument. There was no stipulation. Based upon their testimony at trial, husband contends that he wanted the Recluse Place to go to the parties' sons, and wife wanted the Recluse Place to go to the parties' sons eventually, and, therefore, there was a stipulation which the district court ignored, contrary to the rule which favors such stipulations. Since there was no stipulation, the district court did not abuse its discretion in this regard.

Did the District Court Fail to Consider the Party Through Whom Property Acquired

[¶19] The district court did consider this factor, which derives from Wyo. Stat. Ann. § 20-2-114. This argument is a variation on earlier arguments that wife should not receive any real property gifted to the parties by husband's grandmother. The district court found that both parties received the real property from the grandmother and that grandmother's gift to wife was based on a elose personal relationship between the two, thus making the gift both logical and reasonable given all of the relevant cireumstances.

[¶20] Husband takes this argument one step further, asserting that because husband used his father's equipment for the ranching operation, and because husband's father placed a part of husband's wages in an investment account, which was later used to build a house on the Home Place, wife isn't really entitled to much of anything. In light of our conclusion that this property distribution was equitable and well within the trial court's discretion, we cannot afford any credence to this argument. We discern no abuse of discretion in this regard.

Was it Error to Consider the Zabel Appraisal

[T21] Both parties obtained appraisals on the real property at issue. Bob Zabel did an appraisal for wife. In appraising some of the real property, Zabel used an unconventional method to assess its value. Because that property produced considerable income from surface damage payments and CRP payments, he appraised it at a value considerably higher than did husband's appraiser. Because the methodology used by Zabel with respect to that property was unconventional, the district court did not consider it. However, with respect to the Home Place, the district court chose to rely on Zabel's appraisal. Zabel's appraisal was considerably higher than that done by husband's appraiser. This argument is based in part upon the parties' ownership of an undivided 4/7 interest in the Home Place, a circumstance that serves to devalue the property because it makes the property virtually unmarketable. The district court's decision appears to be based upon a realistic view of its value as the parties' home, which was a factor at the core of Zabel's appraisal.

[¶22] As noted above, the district court enjoys considerable latitude and broad discretion with respect to the admission or exclusion of evidence. We have reviewed the evidence relating to the appraisals in detail and conclude that the district court did not abuse its discretion in admitting a portion of Zabel's appraisal and utilizing it in valuing the Home Place.

Did the District Court Err in Awarding Wife Attorney's Fees

[¶23] Wife's evidence with respect to attorney's fees was admitted without objection from husband. We have held as follows with respect to this issue:

The purpose of attorney fees in a divoree case is to assist the party, as necessary, so that the party can carry on or defend the action. Hendrickson v. Hendrickson, 583 P.2d 1265, 1268 (Wyo.1978); Prentice v. Prentice, 568 P.2d 883, 886 (Wyo.1977). The party seeking to recover attorney's fees bears the burden of demonstrating the reasonableness of the fees and must submit an itemized bill reflecting the time and rate charged. Pekas v. Thompson, 903 P.2d 532, 536 (Wyo.1995) (quoting Hinckley v. Hinckley, 812 P.2d 907, 915 (Wyo.1991)). Even though Hessel and Black are both independently wealthy, the statute does not require that Hessel establish financial necessity for the award of attorney's fees and costs. Rocha, 925 P.2d at 234. Hessel attached an itemized list of . her expenses to her Reply to Defendant's Response and Objection to Plaintiffs Bill of Costs and Attorney's Fees. That document was sufficient to establish reasonableness in light of the expenditures Black made to create his elaborate presentations in this case. Hessel's expenses under the cireumstances were reasonable and neces- . sary to a defense against the attack mounted by Black on the Decree of Divorce. We find in this record more than sufficient information to permit the district court reasonably to decide as it did, and nothing indicates that the decision was arbitrary or capricious. In the absence of an abuse of discretion, we affirm the order awarding © Hessel attorney fees and costs.

Black v. DeBlack, 1 P.3d 1244, 1252-53 (Wyo.2000); Russell v. Russell, 948 P.2d 1351, 1355-56 (Wyo.1997). Under the cireum-stances of the instant case we find no abuse of discretion in the award of attorney's fees.

Did the District Court Make Mathematical Errors

[124] Husband contends that the district court erred in calculating the value of livestock and grain, which cost husband between $4,000.00 (using figures most favorable to wife) and $18,000.00 (using figures most favorable to husband) in the property division process. The district court's math process is not set out in detail in the decree; however, it appears that a mathematical error may have occurred.

[¶25] We begin our analysis by noting that there were some delays in finalizing this divorce because the district court's criminal docket was crowded. After the trial was completed, in an effort to expedite the process of finalization, the district court asked the parties to submit proposed decrees and he would then fashion them into a final decree. The decree, as entered, was not submitted to the parties for approval before it was entered. Husband did not attempt to correct the problem he now complains of on appeal by filing a motion for new trial or a motion for relief from the decree. W.R.C.P. 59 and 60. Thus, the trial court has not had an opportunity to consider its error, if indeed, there is an error.

[¶26] It is apparent that the district court rounded various sums up or down in the process of dividing what amounted to a marital estate valued at between $1.5 million and $2 million. Husband concedes that this argument could result in an increase in his share of that settlement of only $4,000.00. Assuming for purposes of discussion that husband's assertion is correct, we conclude that remand to correct the error is unnecessary because the asserted error is de mini-mus and, thus, is harmless. W.R.C.P. 61; W.R.A.P. 9.04. And see Butler and Butler, 160 Or.App. 314, 981 P.2d 389, 395 (1999) (de minimus error in calculating award on property did not affect fairness of overall property division); Peterson and Peterson, 141 Or.App. 446, 918 P.2d 858, 860 (1996) ($20,450.00 error does not require adjustment where division ended up being $169,827.00 for husband and $182,444.00 for wife); In re Marriage of Binsfield, 269 Mont. 336, 888 P.2d 889, 894 (1995) ($1,424.70 error in division of estate totaling $1.2 million harmless error); Olivas v. Olivas, 108 N.M. 814, 780 P.2d 640, 647 (N.M.App.1989) (de minimus errors will not be examined); In re Marriage of Holden, 81 S.W.3d 217, 222-23 (Mo.App. S.D.2002) (error of only "several thousand dollars" and less than 1% of estate of about one million dollars, minimal/harmless error); and Sateren v. Sateren, 488 N.W.2d 631, 634 (N.D.1992) ($4,500.00 difference in division of estate of $56,000.00 not de minimus).

Did the District Court Err in Awarding 7% Interest on Husband's Cash Payment to Wife

[¶27] Husband contends that the district court erred in requiring husband to pay 7% interest on the judgment it entered against husband in the amount of $232,898.50, the amount which the district court determined would make the property settlement equitable. Wyo. Stat. Ann. § 1-16-102(a) (LexisNexis 2001) provides that "... all decrees and judgments for the payment of money shall bear interest at ten percent (10%) per year from the date of rendition until paid."

[¶28] Husband did not object to the decree or otherwise raise this issue below, nor did wife, and we will not consider it further other than to suggest that the interest rate imposed is set at a level that does not shock the conscience of the court. See Mayland v. Flitner, 2001 WY 69, ¶ 48, 28 P.3d 838, ¶ 48 (Wyo.2001). The decree specifically allows husband to prepay this sum of money, without penalty, and thus it appears that husband is not harmed in any way should he wish to prepay the judgment with money borrowed at a more favorable interest rate than 7%.

Should the District Court Have Included Support Payments as Part of the Property Division

[¶29] Husband contends that wife received an excessive amount of money as support during the pendency of the divorce and, therefore, the district court abused its discretion in not crediting that excess payment to the lump sum payment husband must make to wife, in order to make the settlement equitable. The amount at issue was awarded to wife as support pending the divorcee and not as a part of the property settlement. The divorce action was pending for almost two years. Although no abuse of discretion is apparent, we will note at this Juneture that neither cogent argument nor pertinent authority supports this argument. We have consistently refused to address claims not supported by cogent argument or citation to pertinent authority whether a pro se litigant or counsel files the brief. Walton v. State ex rel. Wood, 2002 WY 108, ¶ 11, 50 P.3d 693, ¶ 11 (Wyo.2002).

Did the District Court Ignore the Tax Consequences of Its Actions

[¶30] Husband contends that the district court ignored the tax consequences of the decree in the sense that husband made support payments to wife during the pendency of the divorce and also paid taxes on all income received during that time period. In the decree, the district court gives full credit to husband for all tases he paid prior to entry of the decree. We perceive no abuse of discretion in this regard.

Did the District Court Fail to Consider the Ability of Husband to Pay

Wyo. Stat. Ann. § 20-2114 provides that the district court may decree alimony to a party out of the estate of the other, "... having regard for the other's ability to pay." The district court did not award alimony in this case, and the argument that this language should apply to the property division is not supported by cogent argument or pertinent authority. For this reason, we decline to address the issue further.

Did the District Court Ignore Its Own Temporary Order

[¶32] We are unable to discern from husband's brief the purport of this contention. A review of the record does not indicate that the district court ignored its original support order or, if it did, that it had any significance insofar as the equitable distribution of the marital estate is concerned.

CONCLUSION

[¶33] We hold that the district court did not abuse its discretion in dividing the marital estate of the parties on an approximately 50/50 basis. When considered as a whole, the property distribution is fair and equitable.