author: RONALD J. STUBBLEFIELD, Judge.

text:
    2003 OK CIV APP 96
    NICHOLS RV WORLD and National American Insurance Company, Petitioners, v. Elizabeth A. CRANDELL and The Workers' Compensation Court, Respondents.
    No. 99,213.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Oct. 21, 2003.

      J. Heath Lofton, Paul V. McGivern, Jr., McGivern, Gilliard & Curthoys, Tulsa, OK, for Petitioners.
    James E. Green, Jr., Conner & Winters, P.C., Tulsa, OK, for Respondent.
   Opinion by

RONALD J. STUBBLEFIELD, Judge.

[ 1 An employer and its insurance carrier seek review of an order of a Workers' Compensation Court three-judge panel, which modified the Trial Court's order in part and re-calculated the employer's credit against future workers' compensation payments based on the recovery received by a worker in settlement of a third-party claim. Based on review of the record on appeal and applicable law, we sustain the order.

BACKGROUND FACTS AND PROCEDURAL HISTORY

12 Elizabeth Crandell (Worker) was employed by Nichols RV World (Employer) as a sales person. On October 9, 1999, she was traveling on business for Employer in Co-lIumbus, Ohio, and was injured in a single-vehicle automobile accident while riding as a passenger in a taxicab. She had been directed by Employer to take a taxi from the airport to the fairgrounds to show horse trailers at the American Quarter Horse Congress. Worker suffered multiple bodily injuries and dental injuries and eventually underwent two lumbar surgeries and oral surgery. She filed her Form 3 on January 14, 2000.

13 Worker's claim for compensation was tried before the Oklahoma Workers' Compensation Court at which time Employer reserved "any rights of subrogation." The Trial Court found that Worker had sustained compensable injuries to her lumbar and cervical spine, left hand and abdomen, as well as disfigurement to her left eye, left hip and teeth. The Court awarded benefits for permanent partial disability and continuing medical maintenance and reserved for future hearing the issue of subrogation rights of Employer and its insurance carrier, National American Insurance Company (NAIC), concerning the third-party claim.

1 4 In the meantime, Worker and her husband had commenced a tort action in Ohio federal court against both the owner and the driver of the taxicab. Discovery revealed that the total amount of liability insurance available was $100,000, and that there was no reasonable likelihood of collecting anything beyond that amount from any personal assets of the individual tortfeasors. The tortfea-sorg' insurance carrier, Independent Taxicab Association of Columbus, Inc., tendered the $100,000 policy limit in an offer of full settlement.

15 The compensation insurer, NAIC, had intervened in the federal action. The Ohio counsel for Worker and the counsel for NAIC agreed to accept the $100,000 tendered on behalf of the tortfeasors as a "fair and reasonable settlement" under the circumstances of the case. However, a dispute remained regarding division of the settlement proceeds.

1 6 In October 2002, the Ohio federal court entered an "Order Approving Settlement and Making Equitable Division of Settlement Proceeds." The Court found that NAIC had provided Worker $121,461.67 in compensation benefits pursuant to the judgment of the Oklahoma Workers' Compensation Court, and that Employer was obligated to pay for additional medical and dental treatment and additional permanent partial disability (PPD) payments at the rate of $218 per week. The Court also found that Worker's damages were "far in excess of the amount of the tendered settlement." The Court made the following equitable division of the competing claims to the $100,000 settlement fund:

a. $40,000.00 to Plaintiffs' attorneys, Conner & Winters, P.C. (40% contingent fee), out of which Conner & Winters, P.C. shall pay the fees of [Ohio] co-counsel, David W. Wenger. |
b. $2,287.74 to Plaintiffs' attorneys for costs and expenses.
c. $23,750.00 to NAIC.
d. $6,000.00 to Plaintiff, Ronald Crandell, for his logs of consortium claim.
e. $27,962.26 to Plaintiff, Elizabeth Cran-dell.

The Court then ordered Worker and NAIC to dismiss all their claims against the tortfea-sors and each other, with prejudice, within fourteen days.

T7 Back in the Workers' Compensation Court, Employer had filed a Form 183 requesting a prehearing conference to address the third-party settlement. Employer sought to suspend PPD payments to Worker, claiming it was entitled to do so as a credit/offset under 85 0.8.2001 § 44, for all settlement monies received by Worker and her attorneys. Worker responded that it would be inappropriate for the Trial Court to order any credit against her future compensation payments because the third-party settlement left her "woefully under-compensated for the severity of the injuries she received" and because there was absolutely no risk of her receiving the double recovery which section 44 was designed to protect against.

18 After reviewing the trial briefs submit, ted by the parties and hearing argument of counsel, the Trial Court entered a "Miscellaneous Order" in which it determined that the settlement of the third-party claim was a "compromise settlement" under, section 44, and that (1) the "net amount" collected by Worker under the settlement was $76,250-the $100,000 settlement amount less only the $23,750 received by NAIC; (2) Employer and NAIC are responsible only for the deficiency between the amount collected by Worker ($76,250) and the amount of compensation provided to her ($121,178.34); and (8) Employer and NAIC are entitled to suspend payment of benefits awarded under the Compensation Court order of April 2002 until the total amount of $121,461.67 in benefits has been exceeded. In effect, the Trial Court's order allowed Employer/Insurer a $76,250 credit against the PPD owed Worker.

1 9 Worker appealed to a three-judge panel, arguing there should be no credit against future benefits because she had not been made whole by the third-party settlement and did not receive a double recovery. In the alternative, Worker claimed that, if Employer and NAIC were entitled to any credit at all, it should be calculated based on the "net amount" she actually received-$27,962.26.

1 10 The three-judge panel vacated certain portions of the Trial Court's order and modified it by reducing the amount of Employer's credit against future workers' compensation benefits to $27,962.26, the amount actually apportioned to Worker under the third-party settlement order. Employer and NAIC now seek review in this Court.

STANDARD OF REVIEW

11 Employer claims that the panel erred in calculating the section 44 credit by improperly deducting the amounts apportioned by the federal court for Worker's attorney fees, costs and expenses, and the loss of consortium claim of Worker's husband. Employer requests this Court to vacate the panel's order and reinstate the Trial Court's finding that it is entitled to a credit against the payment of future workers' compensation benefits to Worker in the amount of $76,250.

This appeal does not involve fact-based determinations of the Workers' Compensation Court, but rather the legal conclusion reached regarding Employer's applicable credit, under section 44, against future PPD payments. On questions of law, the appellate courts exercise de novo review. B.E. & K. Constr. v. Abbott, 2002 OK 75, ¶ 1, n. 1, 59 P.3d 38, 39. Under the de novo standard of review, this Court has "plenary, independent and non-deferential authority to determine whether the lower court erred in its legal rulings." American Airlines v. Hervey, 2001 OK 74, ¶ 11, 33 P.3d 47, 50 (footnote omitted).

DISCUSSION

I. Determination of the Deficiency

113 Employer's sole contention of error is that the three-judge panel erred in limiting the amount of the third-party settlement to the amount apportioned to Worker by the federal court. Analysis of this issue must begin with an examination of 85 00.98.2001 § 44, which provides:

(a) If a worker entitled to compensation under the Workers' Compensation Act [(Act] ] is injured or killed by the negligence or wrong of another not in the same employ, such injured worker shall, before any suit or claim under the [Act], elect whether to take compensation under the [Act], or to pursue his remedy against such other. Such election shall be evidenced in such manner as the Administrator may by rule or regulation preseribe. If he elects to take compensation under the [Act], the cause of action against such other shall be assigned to the insurance carrier lable for the payment of such compensation, and if he elects to proceed against such other person or insurance carrier, as the case may be, the employer's insurance carrier shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by the [Act] for such case. The compromise of any such cause of action by the worker at any amount less than the compensation provided for by the [Act] shall be made only with the written approval of the Court. Whenever recovery against such other person is effected without compromise settlement by the employee or his representatives, the employer or inswramce company having paid compensation under the [Act] shall be entitled to reimbursement as hereinafter set forth and shall pay from its share of said reimbursement a proportionate share of the expenses, including attorneys fees, incurred in effecting said recovery to be determined by the ratio that the amount of compensation paid by the employer bears to the amount of the recovery effected by the employee. After the expenses and attorneys fees have been paid, the balance of the recovery shall be apportioned between the employer or insurance company having paid the compensation and the employee or his representatives in the same ratio that the amount of compensation paid by the employer bears to the total amount recovered; provided, however, the balance of the recovery may be divided between the employer or insurance company having paid compensation and the employee or his representatives as they may agree.
In the event that recovery is effected by compromise settlement, then in that event the expenses, attorneys fees and the balance of the recovery may be divided between the employer or insurance company having paid compensation and the employee or his representatives as they may agree. Provided, that in the event they are unable to agree, then the same shall be apportioned by the district court having jurisdiction of the employee's action against such other person, in such manner as is just and reasonable.

(Emphasis added.) (Language of a 1975 amendment to section 44 is set out in italics.)

T 14 Section 44, in regard to calculation of the "deficiency," speaks of the difference of the compensation provided and the "amount of the recovery against [the third party] actually collected." Other language in the statute, which we find particularly telling, provides that the "balance of the recovery" for division between employer/insurer is the amount "[alfter the expenses and attorney fees have been paid."

{15 As it did below, Employer primarily relies on three cases to support its position in this appeal: Milliser v. Mercury Drilling Co., 1987 OK CIV APP 22, 738 P.2d 962; Keeney v. TTC Illinois, Inc., 2002 OK CIV APP 48, 46 P.3d 192; and Caffey v. Soloray, 2002 OK 82, 57 P.3d 870. Without question, those three cases all support the rule that an employer is responsible only for the deficiency between what an injured worker is entitled to under the Workers' Compensation Act and what he actually collected from a negligent third party. However, not one of the cases explicitly sets out what exactly constitutes the third-party recovery of the worker used to determine the "deficiency," although the three cases tend to follow the statutory language. In Milliser, the Court referred to what the worker/plaintiff "actualty collected from [the] negligent third party." Milliser, 1987 OK CIV APP 22 at ¶ 7, 738 P.2d at 964 (emphasis added). In Coffey, the Court similarly referred to the "amount of the recovery ... actually collected" by the worker. Caffey, 2002 OK 82 at ¶ 6, 57 P.3d at 873 (emphasis added).

116 We conclude that section 44 intends that the actual third-party recovery by a worker is the amount to be used in caleu-lating a deficiency. Such a construction of section 44 best fulfills the intent of the law, which, since originally enacted in 1915, has been (1) to protect the rights of employers and their insurance carriers to be subrogated to the claims of injured workers against third-party tortfeasors to the extent of compensation benefits paid; and (2) to guard against workers receiving double recovery. Prettyman v. Halliburton Co., 1992 OK 63, ¶ 6, 841 P.2d 573, 576. It is obvious that any part of a third-party recovery which goes to a worker/plaintiffs counsel, as fees or for advanced costs, does not go to the worker and, therefore, could not be considered part of a double recovery. It goes without saying that the same is true for a recovery by an entirely different party-such as the husband's recovery for loss of consortium.

117 We find it to be the intent of section 44 that only the direct/actual recovery by the worker is considered in determi-nating the "deficiency." In this case, that amount was specifically delineated by the federal court, and was the amount specified in the three-judge panel's order. Thus, the three-judge panel order did not err in exelud-ing attorney fees and the loss of consortium recovery when determining the section 44 deficiency.

II. Employer's Attack Upon the Apportionment Order

118 In its appellate brief, under its single contention of error, Employer makes several additional arguments. It states that what really lies "at the heart of this appeal is the issue of whether a district court has authority to award attorney fees and litigation costs in an action for personal injuries." Employer claims the federal district court "sua sponte" entered the order making equitable division of settlement proceeds and awarding Worker's attorney fees, although it "clearly lacked authority to award attorney fees and costs." Employer accuses the federal court of paying Worker's attorneys an "excessive, unreasonable fee" and refunding "alleged" costs and expenses in an "excessive amount." Employer maintains: "Any suggestion that Employer was in agreement with this outrageous fee arrangement is ridiculous."

119 We find these appellate assertions without merit. First, Employer's insurance carrier, NAIC, was designated as "Interve-nor" in the third-party action filed in Ohio federal court. The federal court "Order Approving Settlement and Making Equitable Division of Settlement Proceeds" provides:

This case comes before the Court on the joint motion of the parties to approve settlement with the Defendants and for an equitable apportionment of the proceeds of the settlement between the Plaintiffs, Elizabeth A. Crandell and Ronald Crandell, their attorneys, and the Intervenor, National American Insurance Company (“N A10”).

(Emphasis added.) This is prima facte proof that the judicial apportionment order was not entered "sua sponte," as Employer asserts, but at the request of Worker, her attorneys and NAIC.

120 Furthermore, because the order recites that the parties requested the federal court to both approve the settlement and apportion the proceeds, it further appears that Worker, her attorneys and NAIC were unable to agree on division of the third-party settlement amount. In such an instance, the second paragraph of section 44(a) mandates that the expenses, attorney fees and balance of recovery "shall be apportioned by the district court having jurisdiction of the employee's action against such other person, in such manner as is just and reasonable." In light of that provision, Employer and NAIC's argument that the federal court was limited by the "American Rule" regarding attorney fees, and "lacked authority" to determine a reasonable fee for Worker's counsel is disingenuous and without merit.

21 After noting that there were "competing claims" between Worker, her attorneys and NAIC for its subrogation claim, the federal court in its order fashioned an equitable division of the settlement proceeds. The order was approved as to both form and content by the law firm which represented NAIC in the federal court proceeding. The order was not appealed. Thus, the final judgment of the federal court conclusively established that the fee awarded to Worker's counsel was "just and reasonable" under section 44(a). See Tipton v. Oklahoma Property & Cas. Guar. Ass'n, 1993 OK CIV APP 134, ¶¶ 15-16, 859 P.2d 527, 582.

122 Employer also claims that Worker "voluntarily" limited her recovery to $100,000, at least insinuating that she should not gain from such an act. We again disagree because the federal court order demonstrates to the contrary. The order recites that: (1) The settlement amount constituted the tortfeasors' full Hability insurance policy limit; (2) no other insurance was available; (8) Worker and NAIC wished to accept the $100,000 tendered on behalf of the tortfea-sors and asked the Court to approve that settlement as fair and reasonable.

123 Review of the appellate assertions made by Oklahoma counsel for Employer and NAIC in light of the contents of the federal court apportionment order reveals that current counsel is telling this Court what suits the present interests of Employer and NAIC, as though what prior counsel did in a different court is without relevance. This Court does not condone such practices. Employer and NAIC are estopped from asserting a position contrary to that assumed by NAIC in federal court. See Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, ¶ 18, 687 P.2d 121, 128; State ex rel. Comm'rs of Land Office v. Keller, 1953 OK 371, ¶¶ 30-32, 264 P.2d 742, 748-49.

IIL The Limitations on This Court's Authority to Correct the Erroneous Compensation Court Order

[ 24 In her appellate response brief, Worker maintains that, although the three-judge panel attempted to correct the error of the Trial Court by excluding the amounts apportioned by the federal court for attorney fees and her husband's loss of consortium claim, the panel nonetheless erred. She asserts that no section 44 credit should have been allowed because she was not fully compensated by her recovery in the federal lawsuit, and that it was error for the three-judge panel to allow Employer to suspend any benefit payments.

T25 Employer responds that this Court should not consider Worker's argument because she voluntarily agreed to limit her recovery (instead of having a judge or jury determine the full extent of her damages), and is estopped from claiming she has not been made whole. In addition, Employer points out Worker's failure to file a counter-appeal seeking review of the Workers' Compensation Court decision, and claims she has waived any argument seeking her own affirmative appellate relief. We find no merit to Employer's estoppel argument, but, because we are constrained by rules of appellate practice, we must agree with Employer's latter contention, and we find that Worker has failed to preserve a right to correction of any lower court error.

126 The general rule is that an appeliee who does not file a counter-appeal may "argue only those errors which, if rectified, would support the correctness of the trial court's judgment." Bivins v. State ex rel. Oklahoma Mem'l Hosp., 1996 OK 5, ¶ 20, 917 P.2d 456, 465. "The successful party may, without cross-appealing or assigning errors, save the judgment by showing that errors were committed against him below which, if corrected, will make the result reached below correct." Woolfolk v. Semrod, 1960 OK 98, ¶ 0, 351 P.2d 742, 748 (syllabus 2 by the court).

127 Oklahoma Supreme Court Rule 1.100(c), 12 0.9.2001, ch. 15, app. 1, provides that a cross-action or counter-action to review a decision of the Workers' Compensation Court shall be commenced within the same time and in the same manner as the principal proceeding/petition for review. Even though this case is subject to de novo appellate review, limitations on our authority prevent this Court from directing the entry of an order more favorable to Worker than the panel-substituted order-a counter-appeal was necessary for her to challenge the panel's calculation of the eredit amount.

IV. Appeal-Related Attorney Fees

1 28 In the concluding paragraph of Worker's appellate response brief, she requests this Court to award her $1,500 attorney fees for defending the appeal. However, the fee request is not in compliance with Oklahoma Supreme Court Rule 1.14, 12 00.98.2001, ch. 15, app. 1, and we will not consider it at this time. Worker may re-urge her attorney fee request pursuant to Rule 1.14(b).

CONCLUSION

129 Both Employer and Worker have challenged the three-judge panel's determination of a $27,962.26 credit under section 44(a) entitling Employer to suspend payment of benefits. Employer claims the appropriate credit amount is $76,250. We reject that contention, finding that the three-judge panel's modification of the order to omit attorney fees, costs, and husband's subrogation recovery was not error. Worker claims there should have been no credit under the cireum-stances of the ease and thus no suspension of her benefit payments. However, her failure to file a counter-appeal precludes us from considering her entitlement to any relief. Consequently, we sustain the order of the Workers' Compensation Court.

T 30 SUSTAINED.

COLBERT, V.C.J., and TAYLOR, P.J., concur.

      . Workers' Compensation Court Rule 47, 85 0.S. 2001, ch. 4, app., was the rule in effect which governed Worker's notification of election of remedies.


source: Caselaw Access Project

author: CARL B. JONES, Judge:

license: Public Domain

text:
    2003 OK CIV APP 99
    Brandi LaNe MOORE, Plaintiff/Appellant, v. Danny Joe MOORE, Defendant/Appellee.
    No. 98,552.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 24, 2003.

      Stan Chatman, Yukon, OK, for Plaintiff/ Appellant.
    Scott E. MeCann, El Reno, OK, for Defendant/Appellee.
   OPINION

CARL B. JONES, Judge:

T1 Brandi LaNe Moore, Appellant, is the adult natural daughter of Appellee, Danny Joe Moore. Approximately two years after reaching the age of majority, Appellant brought a legal action against her father to collect past due child support. Appellee filed a special appearance and moved to dismiss on the basis that Appellant's petition fails to state a claim upon which relief can be granted because she does not have standing or capacity to sue Appellee. Appellee admitted Appellant is his natural child; however, he asserted she is not the proper party to sue or seek a remedy against Appellee for past due child support because the decree of divorce required Appellee to pay Appellant's mother. On October 4, 2002, the trial court dismissed Appellant's petition finding she lacked standing to bring the action. Thereafter, Appellant lodged this appeal.

T2 In reviewing a trial court's disposition by dismissal, this court examines the issues de novo. Miller v. Miller, 1998 OK 24, ¶ 15, 956 P.2d 887, 894. After de novo review of the instant record, we affirm.

T3 On appeal, Appellant urges the trial court erred when it sustained Appellee's motion to dismiss. The record reveals Appellant's mother and Appellee, Appellant's natural father, were divorced on May 21, 1985. The divorcee decree ordered Appellee to pay Appellant's mother child support in the amount of $150.00 per month. Appellant alleges her mother never attempted to collect child support and that the unpaid child support due from Appellee is in arrears approximately $27,000.00. Appellant urges since child support payments are for the benefit of the child, Appellant has standing, as such child, to bring an action against Appellee to collect child support arrearage.

T4 We agree that child support payments are for the benefit of the child. McNeal v. Robinson, 1981 OK 43, ¶ 13, 628 P.2d 358, 360. We also recognize "no parent may, through settlement, agreement, or otherwise, compromise the child's right to enforce a support obligation against its parent." Hedges v. Hedges, 2002 OK 92, 66 P.3d 364 n. 3, citing State Dept. of Human Services ex rel. K.A.G. v. T.D.G., 1993 OK 126, ¶ 10, 861 P.2d 990, 994-95. However, we find no legislative authority or Oklahoma case law recognizing the right of a non-disabled adult child to bring an action against the defaulting parent for the collection of past due child support. See Hedges, supra, wherein the Court specifically footnoted that it did not address an adult child's own right to recovery of child support from the non-contributing parent.

T5 We note some jurisdictions permit either the child or the former custodial parent to bring an action for past due child support against the defaulting parent. See Brown v. Brown, 822 So.2d 1119 (Miss.App.2002), and Clemmons v. Office of Child Support, Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001).

16 However, other jurisdictions have held the cause of action against the non-contributing parent for past due child support lies with the custodial parent who has provided the support and not with the child. See Hartman v. Smith, 100 Wash.2d 766, 674 P.2d 176 (1984); Miller v. Miller, 29 Or.App. 723, 565 P.2d 382 (1977), Stapel v. Stapel, 4 Kan.App.2d 19, 601 P.2d 1176 (1979); and Georgia Dept. of Human Resources ex rel. Holland v. Holland, 263 Ga. 885, 440 S.E.2d 9 (1994). The underlying reason for this general rule is that payment of arrearage can be assumed to be a payment to reimburse the custodial parent for support of the children, rather than a payment for the benefit of the children themselves. See In re Marriage of Utigard, 126 Cal.App.3d 133, 178 Cal.Rptr. 546 (3rd Dist.1981); see also Stanton v. Stanton 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975) (Under Utah law, an action for past due child support belongs to the custodial parent and not the child.).

T7 Since we can find no legislative mandate or Supreme Court ruling permitting a non-disabled adult child to bring a cause of action against the non-contributing parent for past due child support, we decline to create such an action.

18 AFFIRMED.

HANSEN, J., and MITCHELL, P.J., concur.

      . We note 43 O.S.2001 § 112.1A specifically permits an adult child, who does not have a mental disability and is determined by the court to be capable of managing his or her own financial affairs, to file a suit against either or both parents for support for an indefinite period if the court finds the child is not capable of self-support because of a physical disability. However, since the instant case deals with past due child support which was for the benefit of a non-disabled minor child, this statute is clearly inapplicable.


author: HILL, Chief Justice. LEHMAN, Justice,

text:
    2003 WY 156
    Tucker James BUSH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-218.
    Supreme Court of Wyoming.
    Dec. 2, 2003.

      Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General, Argument by Ms. Cooley.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[T1] Appellant, Tucker James Bush (Bush), challenges the district court's sentence ordering him to pay $9,744.00 in restitution to the victim of his crime. Bush entered a plea of guilty to stealing a 1988 Chevrolet pickup from the victim, parts from which he and his girlfriend, Nikki Jo Sparby (Sparby), used to rebuild her 1991 GMC pickup that she had damaged while driving drunk. It is his contention that the district court substantially overvalued the pickup by setting restitution in an amount that allowed the victim to rebuild it piece by piece. We will hold that the restitution order exceeds the district court's legislatively authorized sentencing authority. Thus, we reverse and remand for additional proceedings consistent with this opinion.

ISSUES

[T2] Bush raises this issue:

Did the district court err when it ordered [Bush] to pay restitution to the victim for rebuilding his stolen 1988 vehicle, including labor costs, updating the transmission, and replacement parts, instead of setting the amount of restitution at the fair market value of the 1988 vehicle at the time it was stolen?

The State poses two issues for our consideration:

I. Whether this Court has jurisdiction to hear this appeal, as [Bush] knowingly and voluntarily waived the right to appeal his sentence, including restitution?
II Whether the district court abused its discretion in its award of restitution to the victim?

FACTS

[13] The issues raised in this appeal arise from a plea bargain agreement that contained this language:

The Defendant has been charged with the following offenses: Count I-Wrongful Taking or Disposing of Property (concealing/disposing) Valued at $500.00 or More, in violation of Wyoming Statute § 6-3-a felony; and Count II-Conspiracy to Wrongfully Take or Dispose of Property Valued at $500.00 or More, in violation of Wyoming Statute § 6-1-308(a) and § 6-8-408(a)()(b), a felony.
AGREEMENT
In consideration of the mutual terms, covenants and conditions of this Statement of Agreement, the respective parties agree with one another and respectfully submit to this Honorable Court as follows:
1) The Defendant will enter a plea of guilty to Count I of the Felony Information: Wrongful Taking or Disposing of Property (concealing/disposing) Valued at $500.00 or More, and establish a factual basis for said plea of guilty.
2) After the Court has accepted the Defendant's plea of guilty to Count I and entered the guilty plea of record, the State will then move the Court to dismiss Count II of the Felony Information.
3) There is no agreed upon recommendation to the Court regarding sentencing; the respective parties would be free to recommend to the Court whatever sentence they deem to be just under the cireumstances of this case; Defendant shall pay restitution as ordered by the Court and determined by the State Department of Corrections, Field Services Division.
4) As the plea of guilty herein is based upon this Agreement and the mutual consideration contained in the Agreement itself, the Defendant will not file any post guilty plea/conviction motions, request(s) for sentence reduction, appeals, or post conviction relief petitions.
5) This agreement will be disclosed and recommended to the Court pursuant to Rule 11 of the Wyoming Rules of Criminal Procedure.
6) The above recitation constitutes the entire agreement between the respective parties.

[T4] A prison sentence was imposed, but suspended, and Bush was given a split sentence with probation. At the hearing on Bush's change of plea, the subject of restitution came up only briefly and almost as an afterthought, although it was made clear to Bush that the sentence to be imposed was a matter within the discretion of the district court.

[T5] At the sentencing hearing, the incarceration portion of the sentence was imposed, but restitution was set to be done another day. Eventually, a hearing was held to determine the amount of restitution to be paid by Bush to the victim. The amount was set at $9,744.00 ($8,954.00 owed jointly and severally with Sparby, the remainder was owed individually by Bush). We will set out the restitution order in detail and begin by noting the district court's apt description of this case as one "involving the theft and subsequent dismantling of a 1988 Chevrolet Pickup, ... and the combining of many of said parts with a wrecked 1991 GMC Pickup, and the victim representing the 1988 Chevrolet Pickup to have unique and special value to him and the victim wishing to rebuild the 1988 Chevrolet Pickup and restore it to its former condition. . .." The district court then went on to make these findings and conclusions:

1. The test which is to be applied in this particular matter is the one set forth in W.S. § 7-9-108, specifically relating to determination of restitution amounts owed, which directs the Court to fix a reasonable amount as restitution owed to each victim for actual pecuniary damage, and this is the touchstone that the Court will apply in this case.
2. Pecuniary damage means all damages which a vietim could recover against a defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages, damages for pain and suffering, mental anguish and loss of consortium.
8. As the Court pointed out in the companion case involving co-defendant Sparby (State v. Sparby, Criminal case #3759) this is not simply a case involving the theft of a motor vehicle; rather, the facts of this criminal action involve co-defendant Spar-by knowing that the 1998[sic] Chevrolet Pickup was stolen. Ms. Sparby paid money for the victim's stolen vehicle, knowing she wasn't going to get a good title. [Bush] eventually figured this out and further, was advised by Ms. Sparby that the 1988 Chevrolet Pickup was, in fact, stolen. The fact that someone else stole the 1988 Chevrolet Pickup and sold it to Ms. Sparby does not give rise to any claim of unjust enrichment.
4. Further, this case involves the theft of a vehicle for its parts and as the parts are worth more than the whole in this motor vehicle theft, a jury could reasonably award a damage amount that exceeds the book value of the 1988 Chevrolet Pickup at the time of the theft. Book value of the stolen 1988 Chevrolet Pickup at the time of its theft, however, is not the appropriate value for the determination of restitution in this case.
5. The Court finds that $8,700.00 is an appropriate restitution value for reconstruction labor in rebuilding the 1988 Chevrolet Pickup, and that $4,484.00 is an appropriate value for the restitution of replacement parts. Further, the sum of $750.00 is a reasonable sum for transportation of vehicle and parts back to the vice-tim's residence in Longmont, Colorado. The total of these amounts is $18,884.00.
6. In the appropriate case and by reason of the wording of the statute, attorney's fees could be awarded but attorney's fees are not appropriate in this case, and therefore, the requested $1,100 claim for attorney's fees is disallowed.
7. As parts from the victim's 1988 Chevrolet Pickup were combined with parts from the wrecked 1991 GMC Pickup, the Court will grant a credit in favor of [Bush] to be deducted from the restitution figure set forth in paragraph numbered 5 herein, and in this regard, a credit of $4,200.00 shall be given for the 1991 GMC Pickup parts.

We note that a mathematical error occurred in the district court's calculation, and the restitution amount should have been set at $9,644.00. Because we reverse and remand for further proceedings, this error is of no consequence, but we did not want the miscalculation to appear to have gone unnoticed.

DISCUSSION

Waiver of Right to Appeal

[T6] The threshold question is whether Bush's waiver of right to appeal encompasses the right to appeal the district court's determination of restitution. The State's contention is that the waiver was plenary and bars this appeal. It is established that a defendant may waive his right to appeal, so long as that waiver is knowing and voluntary. United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir.1998). However, the sentence imposed in such a cireum-stance must be within that which is authorized by statute. See United States v. Glass, 15 Fed. Appx. 621 (10th Cir.2001); United States v. Baeza, 16 Fed. Appx. 978 (10th Cir.2001); United States v. Neill, 17 Fed. Appx. 743 (10th Cir.2001); and Kristine Cordier Karnezis, Annotation, Validity and Effect of Criminal Defendant's Express Waiwer of Right to Appeal as Part of Negotiated Plea Agreement, 89 AL.R.8d 864 (1979 and 2002 Supp.).

[17] We are able to readily conclude that Bush knowingly and voluntarily waived his right to appeal, in a general sense. However, he did not waive his right to appeal a sentence that exceeded the punishment prescribed by law:

The source of the legislature's power to limit judicial authority as to sentencing is found in the constitutional separation of powers. The legislative branch has the exclusive power to define crimes and to prescribe punishments for those crimes. Billis v. State, 800 P.2d 401, 412-15 (Wyo.1990). Consequently, a court may only impose a sentence of incarceration that falls within the minimum and maximum punishment prescribed by statute. Williams v. State, 692 P.2d 233, 235 (Wyo.1984).

Daugherty v. State, 2002 WY 52, ¶ 15, 44 P.3d 28, 34 ¶ 15 (Wyo.2002).

[18] In Ryan v. State, 988 P.2d 46, 62-63 (Wyo.1999), we iterated our definition of an illegal sentence:

"An illegal sentence is one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law." Sanches v. State, 982 P.2d 149, 150 (Wyo.1999) (citing Duran v. State, 949 P.2d 885, 887 (Wyo.1997)). The determination of whether a sentence is illegal is made by reference to the authorizing statute or applicable constitutional provisions and is, therefore, a matter of statutory interpretation. Interpretation of statutes is a question of law, which we review de novo. French v. Amax Coal West, 960 P.2d 1023, 1027 (Wyo.1998); Chevron U.S.A., Inc. v. State, 918 P.2d 980, 983 (Wyo.1996).

Was the Restitution Order a Legal Sentence

[19] Appellate review of restitution is confined to a search for procedural error or a clear abuse of discretion. Brown v. State, 2003 WY 72, ¶ 9, 70 P.3d 238 ¶ 9 (Wyo.2003); and see Penner v. State, 2003 WY 143, ¶ 7, 78 P.3d 1045, ¶ 7 (Wyo.2003). Moreover,

The distinction between whether a defendant is making a factual challenge to an order of restitution or whether he is challenging the authority of the trial court to make a particular award of restitution is an important one. Challenges to the fae-tual basis of an award of restitution can be waived in certain cireumstances by the defendant's voluntary actions, such as entering into a plea agreement, and then failing to make any objection at sentencing, as occurred in Meerscheidt. See also Al-dridge v. State, 956 P.2d 341, 348 (Wyo. 1998). Outside the context of a plea agreement, the failure to object to a factual determination in the awarding of restitution results in an appellate review for plain error. See Gayler v. State, 957 P.2d 855, 857 (Wyo.1998). In contrast, a challenge by a defendant to the authority of a trial court to make a particular award of restitution is reviewed on appeal under a de novo statutory interpretation standard whether or not the defendant objected or entered into a plea agreement. Meer-scheidt, 9831 P2d at 228-224, 226-227. While not explicit in our decision in Meer-scheidt, the reason for conducting a de novo review under such circumstances is that a court has only that authority to act which is conferred by the subject statute. Aldridge, 956 P2d at 348. ("The trial court's exercise of discretion in ordering restitution does not spring from any inherent authority. Rather that exercise, like our review, is cireumseribed by the statutes empowering the trial court to order restitution.") (citation omitted); see also Horn v. State, 556 P.2d 925, 927 (Wyo. 1976) ("[A] penal statute cannot be extended by implication or construction to persons or things not expressly brought within its terms, nor to cases not within the letter of the statute...."). An order of restitution by a trial court which exceeds the authority granted by the statutes governing restitution would be void, and a void order may be challenged at any time. People v. Evans, 122 Ill.App.3d 733, 78 Ill.Dec. 50, 461 N.E.2d 634, 639 (1984); see also State ex rel. TRL by Avery v. RLP, 772 P.2d 1054, 1057 (Wyo.1989).

Merkison v. State, 996 P.2d 1138 at 1141-42 (Wyo.2000) (emphasis in original).

[110] We perceive Bush's argument to be both a challenge to the factual basis for the order of restitution, as well as one which challenges the authority of the district court to impose restitution such as that ordered.

[111] Restitution is described by Wyo. Stat. Ann. § 7-9-108 (LexisNexis 2008):

§ 7-9-1083. Determination of amount owed; execution.
(a) As part of the sentencing process including deferred prosecutions under W.S. 7-183-301, in any misdemeanor or felony case, the prosecuting attorney shall present to the court any claim for restitution submitted by any victim.
(b) In every case in which a claim for restitution is submitted, the court shall fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant's criminal activity, and shall include its determination of the pecuniary damage as a special finding in the judgment of conviction or in the order placing the defendant on probation under W.S. 7-13-801. In determining the amount of restitution, the court shall consider and include as a special finding, each victim's reasonably foreseeable actual pecuniary damage that will result in the future as a result of the defendant's criminal activity. A long-term physical health care restitution order shall be entered as provided in W.S. 7-9-1183 through 7-9-115.
(c) The court shall order the defendant to pay all or part of the restitution claimed or shall state on the record specific reasons why an order for restitution was not entered. If the court determines that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay in the future, the court shall enter specific findings in the record supporting its determination.
(d) Any order for restitution under this chapter constitutes a judgment by operation of law on the date it is entered. To satisfy the judgment, the clerk, upon request of the victim or the district attorney, may issue execution in the same manner as in a civil action.
(e) The court's determination of the amount of restitution owed under this seetion is not admissible as evidence in any civil action.
(f) The defendant shall be given credit against his restitution obligation for payments made to the victim by the defendant's insurer for injuries arising out of the same facts or event.

A part of the analytic process for construing a statute is this:

Applicable general principles of statutory construction include: if the language is clear and unambiguous, we must abide by the plain meaning of the statute; if a statute is ambiguous, we may resort to general principles of construction; an ambiguous statute is one whose meaning is uncertain and susceptible of more than one meaning; and in a criminal statute, an ambiguity should be resolved in favor of lenity.
Mazurek v. State, 10 P.3d 531, 540-41 (Wyo.2000) (quoting Pierson v. State, 956 P.2d 1119, 1125 (Wyo.1998)). We analyze statutes with the objective of ascertaining the legislature's intent, commencing with an inquiry into the ordinary and obvious meaning of the words employed according to their arrangement and connection. Misenheimer v. State, 2001 WY 65, ¶ 7, 27 P.3d 273, ¶ 7 (Wyo.2001). "We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia so that no part will be inoperative or superfluous." Id. (quoting Capshaw v. State, 10 P.3d 560, 564 (Wyo.2000)) (citing Fall v. State, 963 P.2d 981, 983 (Wyo.1998)). We will not construe a statute in a way that leaves any portion meaningless or produces an absurd result. Mazurek, 10 P.3d at 541; Pierson, 956 P.2d at 1125.

State v. Nelson, 2002 WY 99, ¶ 6, 49 P.3d 185, ¶ 6 (Wyo.2002).

[112] By its own words, the governing statute articulates that restitution shall be fixed at a "reasonable amount." The district court is required to determine the "pecuniary damage" suffered by the victim. "Pecuniary damage" means: "[All damages which a vie-tim could recover against the defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages and damages for pain, suffering, mental anguish and loss of consortium[.]" Wyo. Stat. Ann. § 7-9-101(a)(iii) (LexisNexis 2003).

[113] With respect to restitution, the ABA Standards for Criminal Justice: Sentencing (3rd ed.1994), provides this guidance:

Economic Sanctions
Standard 18-3.15 Restitution or reparation
(a) For an offense that resulted in a victim's personal injury or loss of money or property, the legislature should authorize sentencing an individual or an organization to make restitution to the victim or to compensate the victim for losses suffered. The legislature should authorize a sentencing court to order payment to a fund for future disbursement if the identities of the victims or the amounts of their claims are not ascertained at the time of sentencing.
(b) In the event of injury or loss that the offender has special capacity to restore or repair, the legislature should authorize sentencing an individual or organization to perform such reparations.
(c) The agency performing the intermediate function should guide sentencing courts in the appropriate use of restitution and reparation.
(i) The sanction should be limited to the greater of the benefit to an offender or actual loss to identified persons or entities. Claimants seeking general, exemplary, or punitive damages, or asserting losses that require estimation of consequential damages, such as pain and suffering or lost profits, should be limited to their civil remedies.
(ii) The agency should provide that sentencing courts may require offenders to pay the full amount of the sanction forthwith or, taking into account the financial circumstances of an offender, to pay the amount in scheduled installments.
(d) The legislature should enact appropriate provisions to integrate the criminal sanction of restitution or reparation with a victim's right of civil action against an offender. The legislature should authorize sentencing courts to allow a defense or plea in bar, which might have been raised in a civil proceeding by a victim against an offender, as appropriate and relevant to liability imposed in the criminal proceeding.
(e) The legislature should authorize a sentencing court to retain jurisdiction over an offender sentenced to a restitution or reparation sanction until the sanction is satisfied or the sentence is reseinded.
(f) The legislature should place responsibility for enforcement of orders of restitution or reparation on a designated public official. The legislature should authorize that official to enforce the court order by use of any method available to enforce a civil judgment.

As can readily be perceived, Wyoming's restitution statute is largely in consonance with the ABA Standard.

[114] Wyoming's restitution statute requires that restitution be "reasonable" and that it address the victim's "actual pecuniary damage resulting from the defendant's criminal activity." The determination of "actual pecuniary damage" is usually a fairly simple and direct calculation based on fair market value, or some other similar test. See generally, George Blum, Annotation, Measure and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute, 15 A.L.R.5th 391 (1993 and Supp.2001). In this instance, the district court did not rely on market value or book value to ascertain an appropriate amount of restitution. Instead, the district court recognized the special value this particular 1988 Chevrolet pickup had to the victim and set the restitution in an amount that would allow him to rebuild a 1988 Chevrolet pickup from "the ground up." The record is clear that it is not possible for the 1988 Chevrolet pickup to be reassembled using its original parts, as many, if not most of them, are gone. The record does not reveal the source of the victim's special attachment to the pickup in question. As a general rule, an individual cannot receive an award of damages for his subjective sense of value about personal property:

If personal property had a market value, no recovery can be had on the basis of its value to the owner individually, apart from its market value. But if the market value would not be a fair compensation for a personal loss, a plaintiff is sometimes permitted to recover the value of the item to him. Also, it is sometimes provided by statute that the peculiar value to the owner which certain property may have may be deemed to be its value under certain circumstances, such as where the wrongdoer had advance notice of the special value or was guilty of a willful tort.

22 Am.Jur.2D Damages § 437 (1988).

In some cases, the plaintiff is denied all recovery for his claimed injury to those property interests which have no market value on the basis that the plaintiff cannot recover for sentimental or fanciful losses. But the rule denying recovery for sentimental value of personal property is not applicable if the items have primarily sentimental value. Sentimental value may be associated with feelings generated by such items as family heirlooms, photographs, and papers, handicrafts, and trophies, as these items are generally capable of generating sentimental feelings. But the courts will not allow a substantial recovery for injuries to property interests in things when the specific owner has an atypical sentimental connection with the item involved.

22 Am.Jur.2D Damages § 439 (1988).

[% 15] In this instance the record will not support a finding that the 1988 Chevrolet pickup involved in this case had a "special," "unique," or "sentimental" value in an objective sense, or even in a subjective sense vis-a-vis the victim. In addition, we conclude that a 1988 Chevrolet pickup has a readily ascertainable fair market value that equates with the statutory directive that the victim of a crime be recompensed for "actual pecuniary loss." The restitution statute provides for a civil action to collect such "special" damages as those sought by this victim. Because issues such as whether the pickup was special, unique, or of sentimental value, and what that value might be, if any, are very difficult fact questions, they are better suited for civil litigation and jury resolution.

CONCLUSION

[T16] Based on this analysis, we hold that Bush did not waive his right to appeal his sentence to the extent that the sentence was not authorized by the restitution statute. Furthermore, we hold that the district court did impose an illegal sentence in fashioning the restitution award. This matter is remanded to the district court with directions that restitution be set in an amount that reasonably compensates the victim for his actual pecuniary damage, i.e., the fair market value of his 1988 Chevrolet pickup.

LEHMAN, Justice,

dissenting, with whom KITE, Justice, joins.

[T 17] I must respectfully dissent.

[118] The majority finds the order of restitution in this matter constitutes an illegal sentence. The basis of the majority's finding appears to be that the majority does not agree that the "pecuniary damages" in this case can be something other than the pickup's readily ascertainable fair market value at the time of theft, The majority thus concludes that the amount of restitution ordered by the district court is not reasonable. In reaching this conclusion, the majority has substituted its own determination of reasonable restitution for that of the district court.

[119] As the majority stated, our review of an order of restitution "is confined to a search for procedural error or a clear abuse of discretion." ¶ 9 (citing Brown v. State, 2003 WY 72, ¶ 9-70 P.3d 238, ¶ 9 (Wyo. 2003)). When considering an abuse of discretion, we must determine whether the district court could reasonably conclude as it did. Herrera v. State, 2003 WY 25, ¶ 10, 64 P.3d 724 ¶ 10 (Wyo.2003). We look to see whether the district court exercised sound judgment with regard to what is right under the circumstances without doing so arbitrarily or capriciously. Brown, ¶ 9. Specifically, the applicable statutes require us to determine whether the damages awarded could have been recovered in a civil action arising out of the same facts or events. See Wyo. Stat. Ann. § 7-9-103(b); Wyo. Stat. Ann. § 7-9-101(iii); Alcaraz v. State, 2002 WY 57, ¶¶ 14-15, 44 P3d 68, ¶¶ 14-15 (Wyo.2002) (holding that a portion but not all of the cost of video surveillance equipment could be allocated to the defendant charged with felony larceny).

[120] The oral pronouncements from the bench as well as the restitution order indicate that the district court was cognizant of this requirement and sought to ascertain the damages accordingly. Indeed, I find that the amount of restitution ordered in this case falls within the confines of what could have been recovered in a civil trial. Therefore, we must not substitute our judgment of reasonable restitution for that of the district court. I believe the district court could reasonably conclude as it did and did so without acting arbitrarily or capriciously, and I would therefore uphold the district court's restitution order.

[T21] As was the cage in Alcaraz, neither party suggests a civil cause of action which could arise out of the same facts. Alcaraz, at ¶ 8. Similarly, however, an applicable civil cause of action would be conversion. Conversion is a distinet act of dominion wrongfully executed over one's property in denial of his right or inconsistent with it. Id. The proper measure of damages in a conversion case can include various components. For instance, in a conversion case involving a road grader, the plaintiff was awarded the return of his road grader, $10,000 to repair the engine, $400 to replace the cutting edge and batteries, $900 for tire replacement, $4,600 for the cost of attempted recovery of the grader, and $67,500 for the loss of use of his grader. Cross v. Berg Lumber Co., 7 P.3d 922, 931 (Wyo.2000). As can be seen, the plaintiff was given back his road grader and also awarded an allowance to repair his grader.

[122] We have further indicated that the injured party should receive full compensation for his actual losses whether it is by repair to the property or some other measure. Alcaraz, at ¶ 8; In conversion cases, damages are generally the sum of money necessary to compensate the plaintiff for all actual losses or injuries sustained as a natural and proximate result of the defendant's wrong. Alcaraz, at ¶ 8. Indeed, special damages may be recovered in an action for conversion for any injury proximately resulting from the conversion. Id. The question then becomes the valuation of the injured party's actual damages.

[123] In making this determination, I consider what we have said regarding both restitution and civil damages in general. The purpose of an order of restitution is to compensate the victim for his loss. In describing this purpose we have said.:

The goal in awarding damages is to make the injured party whole to the extent that it is possible to measure an injury in terms of money. 22 Am.Jur.2d Damages § 26 (1988). This occurs when the victim is in the same financial position he would have been in had the wrong not been committed. Id. We have said, "In computing damages, 'the primary objective [is] to determine the amount of loss, applying whatever rule is best situated to that purpose." " Cross, 7 P.3d at 933 (quoting O's Gold Seed Company v. United Agri-Products Financial Services, Inc., 761 P.2d 673, 676 (Wyo.1988)).

Alcaraz at ¶ 15.

[124] As can be seen by the above quote, the determination of restitution based on the amount of loss is not an exact science. Rather, this determination can be reached through the application of different rules. The appropriate measurement will vary depending on the cireumstances, We have stated, "liln cases where property is destroyed, the proper damage amount is the item's market value at the time it was destroyed. The retail market value is used when the victim intends to replace the property." Meerscheidt v. State, 931 P.2d 220, 226 (Wyo.1997) (citation omitted).

[125] In various civil actions we have also recognized the varying measures of damages. We have said, "[the measure of damages to property which can be repaired and substantially restored to its former condition is the reasonable cost of repair or restoration." Kirby Bldg. Sys. v. Mineral Explorations Co., 704 P.2d 1266, 1269 (Wyo.1985) (quoting South Cheyenne Water & Sewer Dist. v. Stundon, 483 P.2d 240, 243 (Wyo.1971)). Additionally,

In Meredith GMC, Inc. v. Garner, 78 Wyo. 396, 328 P.2d 371, 378-374 (1958), we discussed the issue of how damages to a motor vehicle which is not totally destroyed are to be calculated. Surveying Wyoming precedent and various scholarly works, we concluded that damages could be calculated by using either the cost-of-repairs method or the decrease-in-market-value method. We indicated that the choice between these two methods should be determined "as the occasion may require." Id., 328 P.2d at 374.

Aetna Casualty & Sur. Co. v. Langdon, 624 P.2d 240, 242 (Wyo.1981). It thus appears that the method for determining the damages varies depending on the cireumstances, and there is no absolute rule. Therefore, the district court should be given wide latitude in making such a determination.

[T26] In this instance, the district court held a hearing regarding restitution. The testimony was specific and detailed relating to the damages incurred and the work and parts it would take to restore the pickup. While this testimony came mostly from the victim, "where an owner has sufficient knowledge to establish the value of his own property, he may properly serve as a witness." Brown, 110. The victim in this case is a certified automobile mechanic and thus situated to have knowledge of these values. The trial court clearly considered the testimony regarding the value of the damage incurred to the victim's pickup and the cost of needed repairs. The district court offset this amount with a eredit for the parts that the vietim could sell because they would not be needed or they were duplicate parts. The trial court additionally ordered that Bush's obligation be joint and several with Sparby's ordered restitution to assure that the victim would not receive a windfall.

[127] A review of the testimony and the thorough considerations of the district court clearly indicates to me that the restitution order was not an illegal order. The amount of restitution fixed by the trial court was supported by evidence sufficient to afford a reasonable basis for estimating the loss and was an amount that could be awarded in a civil suit. See Brown, T9. The majority bases much of its reasoning on the district court's mention of a unique and special value to the victim. My review of the testimony and the order indicates that this does not appear to be a significant basis of the district court's determination. It appears to me that the district court was not compensating the victim for this "subjective sense of value." Rather, it appears the district court simply sought to allow the victim to be made whole through the repair of his truck. Considering the circumstances, such a determination is reasonable.

[128] Perhaps the definition of what is reasonable will differ from one person to another, but under no cireumstances can that difference alone form the basis of an abuse of discretion. In this case, the majority simply did not agree with the district court's method of calculating reasonable damages. However, this does not mean the district court abused its discretion and it certainly does not mean that there was an illegal sentence. As long as the district court's determination was reasonable and in an amount that could be awarded in a civil action it is not arbitrary or capricious and should be upheld.

      . More specifically, the district court warned: "Now I've already mentioned this once. If I accept your plea, the sentence that is imposed in your case is entirely within my discretion. After that sentence is imposed you won't be able to change your mind, you won't be able to appeal, and you'll have to accept that sentence, even if you think it's unfair or too harsh."


author: VOIGT, Justice.

text:
    2003 WY 157
    David H. STONHAM, Appellant (Plaintiff), v. Erni WIDIASTUTI, a/k/a Sara Stonham, Appellee (Defendant).
    No. 02-246.
    Supreme Court of Wyoming.
    Dec. 4, 2003.

      Representing Appellant Bert T. Ahl strom, Jr., Cheyenne, Wyoming.
    Representing Appellee: Mary Elizabeth Galvan, Laramie, Wyoming; and Donald J. Keenan, Riverton, Wyoming.
    Guardian ad Litem: Carol Serelson, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[11] David H. Stonham (Father) appeals the district court's decision awarding Erni Widiastuti, a/k/a Sara Stonham (Mother), an Indonesian woman, sole custody of their two children, ordering that visitation occur in the community where the children reside, and requiring that Father post a $50,000.00 bond as a condition to exercising visitation. Father claims that the district court's decision was an abuse of discretion and/or arbitrary and capricious. We affirm.

ISSUES

[12] The issues raised in this appeal are as follows:

1. Did the district court abuse its discretion when it awarded sole custody to Mother, who intended to take the children and return to Indonesia?

2. Did the district court abuse its disceretion when it required that Father's visitation oceur in the community where the children reside until the younger child reaches the age of ten?

3. Did the district court abuse its disceretion by requiring, as a condition to exercising visitation, that Father post a $50,000.00 bond as security against attorney's fees Mother may incur in enforcing her custody rights?

4. Is Mother entitled to sanctions against Father?

FACTS

[13] Father, a citizen of the United States, and Mother, a native and citizen of Indonesia, became acquainted after Father responded to an advertisement Mother had placed in a dating magazine. After they corresponded for a number of months, Mother traveled to California and stayed with Father for about six months. She then returned to Indonesia, and approximately four months later, Father went to Indonesia where they were married. After a honeymoon in Bali, the couple returned to the United States. Mother was only able to secure a tourist visa, which visa expired after six months, thereafter rendering her an illegal alien.

[14] After approximately ten months of marriage, Mother gave birth to their first child in California. In October 2000, they moved to Lander, where Father had taken a position with Fremont Motor Company. After eight months in Lander, Mother left the marital home with their son and went to a safehouse. Upon arriving home that evening, and finding Mother and son gone, Father telephoned local law enforcement and reported that his wife and child had been kidnapped. He also called the Indonesian Embassy and reported that his wife had kidnapped their son. Two days later, Father filed for divorce.

[15] A guardian ad litem for the children was appointed and, on the parties' stipulation, the district court ordered that Dr. Martha Schilling, Ph.D., conduct a eusto-dy evaluation. Dr. Schilling's report was completed in November of 2001. The next month, at a temporary custody hearing, Father's counsel attempted to present, for the district court's ratification, a "Custody & Separation Agreement," which had been prepared by Father and signed by Father and Mother. Pursuant to this agreement, the parties hoped to accomplish a "legal separation" with no time limit, and to establish the terms of that separation. However, the district court declined to ratify the proposed agreement. Although the parties represented that they were attempting to reconcile, the district court entered a temporary custody, support, and visitation order.

[16] The parties' attempted reconciliation was unsuccessful and a divorce trial was set for August 1 and 2, 2002. At trial, Father testified and called three lay witnesses to testify on his behalf, All three testified regarding their perceptions of the parties' relationship and respective parenting styles and abilities. Mother also testified, and called Malcolm Stonham (Father's father) and Maura Strong (Father's sister) as witnesses. Both stated that they thought Mother should be awarded custody. Malcolm Stonham reasoned that although he did not think that Father would intentionally harm the children, he worried that he was not "in control," that he might "snap," or "that something might happen." Maura Strong explained how Father had asked her to testify falsely on his behalf, that she felt he was capable of hurting the children, and that he had made threats to members of their family.

[T7] Both parties also relied on the opinions of experts. Father called Mark Russler, a licensed counselor with a master's degree in social work. Mr. Russler had met with Father approximately sixteen times, and Mother ten times, over an eleven-month period. Father's one-hour sessions focused mainly on helping him cope with the difficult life changes he was confronting. Mr. Rus-sler testified that, in his opinion, Mother's desire to return to Indonesia was "completely selfish." Nonetheless, he concluded that both Father and Mother were capable and caring parents, and recommended a custody arrangement where both parents would have "frequent, regular contact [with the children} in their environment here."

[T8] Although she was not called as a witness, Dr. Schilling's custody evaluation was offered and received into evidence without objection. Dr. Schilling has a Ph.D. in psychology and is a Wyoming licensed psychologist. In preparing her custody evaluation, Dr. Schilling met with Mother for seven and one-half hours and Father for ten hours, during which time she performed a clinical interview and administered a series of tests. Dr. Schilling also made a number of collateral contacts and reviewed relevant documents. She made very specific clinical findings with respect to both parents, and her report will be examined in more detail later in this opinion; however, with respect to custody and visitation, she concluded:

It is my opinion, at this time, the mother is better equipped to make reasonable decisions about the child's welfare, provide a stable nurturing home environment, and presents no risk of verbal or emotional abuse to the child, and should therefore have primary custody. I recommend liberal visitation with the father.

[19] The district court took the matter under advisement, and approximately one month later issued a Judgment and Decree granting the divorce and awarding Mother primary custody and control of the two children. The district court stated that in reaching this conclusion, it had considered the applicable custody factors set forth in Wyo. Stat. Ann. § 20-2-201 (LexisNexis 2001), and made the following findings: Mother has been the primary caretaker of the children; Mother is better emotionally equipped to care for the children and to make reasonable decisions about the welfare of the children; Father's father and sister both testified that Mother would be a better parent; Father is unable to maintain stable, long-term relationships; Father's behavior indicated that he had little or no respect for Mother; and there was substantial evidence that Father was not truthful in his testimony or his responses to discovery. The district court granted Father two weeks of visitation in the fall, two weeks in the spring, and four weeks in the summer and ordered that the visitation be restricted to the community where the children reside until the younger child reaches her tenth birthday. Finally, the district court ordered that Father post a $50,000.00 bond as security against any attorney's fees that Mother may incur in enfore-ing her custody rights under the Decree of Divorce.

[110] On September 6, 2002, Father filed a Notice of Appeal.

STANDARD OF REVIEW

[111] This Court has clearly articulated the standard for reviewing a district court's decision regarding custody and visitation:

"Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court. It has been our consistent principle that in eusto-dy matters, the welfare and needs of the children are to be given paramount consideration. The determination of the best interests of the child is a question for the trier of fact. We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle.
A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the cireum-stances. Our review entails evaluation of the sufficiency of the evidence to support the district court's decision, and we afford to the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained. Similarly, an abuse of discretion is present when a material factor deserving significant weight is ignored."

In re MS, 9 P.3d 984, 986 (Wyo.2000) (quoting Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998)). We have further stated that " '[JJudi-cial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously' " Cobb v. Cobb, 2 P.3d 578, 579 (Wyo.2000) (quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998) and Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236, 1238 (1985)).

DISCUSSION

Tar CamprEn's Best Interests

[112] Father begins his argument by referencing a number of cases regarding the "best interests of the child" standard and citing Wyo. Stat. Ann. § 20-2-201(a), which states the factors a district court shall consider in determining the best interests of the child. He then summarily concludes that had the district court fully considered all of the relevant factors in this case, the district court would have recognized that the interests of the children would best be served if they were under his primary care, custody and control. He claims that ruling otherwise was a clear abuse of discretion.

[113] Without question, the primary consideration in custody matters must be the welfare of the children involved. In Pace v. Pace, 2001 WY 43, ¶ 11, 22 P.3d 861, 865 (Wyo.2001), we stated:

"The law affords wide discretion to the district court when fashioning custody and visitation provisions for the best interests of the children." Reavis, 955 P.2d at 431. We recognize such discretion encompasses one of the most difficult and demanding tasks assigned to a trial judge. Id. Ultimately, the "goal to be achieved is a reasonable balance of the rights and affections of each of the parents, with paramount consideration being given to the welfare and needs of the children." Leitner v. Lonabaugh, 402 P.2d 713, 720 (Wyo.1965); see also Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo.1993).

[T 14] In determining what is in the child's best interest, Wyo. Stat. Ann. § 20-2-201 requires the district court to consider nine enumerated factors and any other factor it deems relevant. Each case requires the trial court carefully to weigh the relevant factors while looking to the unique and individual family relationships in reaching a resolution that is in the best interests of the children in that family. Reavis, 955 P.2d at 431.

[115] Father asserts that the district court did not adequately address these factors. In Produit v. Produit, 2001 WY 123, ¶ 12, 35 P.3d 1240, 1243-44 (Wyo.2001) (footnote omitted), we articulated the role that this statute should play in a district court's custody determination:

Although explicit findings are not generally compelled, we note that Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2001) became effective July 1, 2000, and sets out the factors the court shall consider in the proper disposition of children in a divorce. 2000 Wyo. Sess. Laws ch. 34, §§ 1, 8. This statute, although not specifically requiring findings as to the various factors, does direct the factors the court shall consider in ordering the disposition of children. On appeal, this court can ascertain whether the factors have been appropriately weighed only if the district court's consideration is reflected in the proceeding tran-seripts, by opinion letter, or as findings in the written order. '

[T16] We have consistently encouraged district courts to spell out the reasons for their conclusions so that we may evaluate the soundness of those reasons; however, they are not required to do so. Resor v. Resor, 987 P.2d 146, 148 (Wyo.1999); Reavis, 955 P.2d at 431-32, The Wyoming Rules of Civil Procedure require only that the district court issue findings of fact where "one of the parties requests it before the introduction of any evidence, with the view of excepting to the decision of the court upon the questions of law involved in the trial. ..." W.R.C.P. Consequently, the general rule is that absent a request pursuant to W.R.CP. 52(a), no specific findings by the district court are required. Produit, 2001 WY 123, ¶ 10, 35 P.3d at 1243. Nevertheless, although the district court is not required to make specific findings with regard to each factor listed in Wyo. Stat. Aun. $ 20-2-201, "[rlemand may be necessary if the consideration of [the] factors is not patent in the district court record." Fergusson v. Fergusson, 2002 WY 66, ¶ 16, 45 P.3d 641, 646 (Wyo.2002).

[117] In the present case, the district court, being fully aware that Mother was an Indonesian resident and planned to return to that country with the children, was confronted with an especially difficult and demanding custody and visitation decision. The district court's decision was based on evidence indicating that Mother had been the children's primary caretaker; that she was emotionally better equipped to care for the children; and that she had the support of a stable, supportive and loving family in Indonesia. The district court also found, and the record indicates, that Father was unable to maintain stable, long-term relationships; that his attitude reflected that he had little or no respect for Mother; and that there was substantial evidence that Father was not truthful in his testimony or response to discovery.

[118] The district court's custody determination also was consistent with Dr. Schilling's custody evaluation. Dr. Schillings' relevant clinical findings were as follows:

[Mother] is quite outgoing and sociable and likes to be around others. She is nurturing and protective and feels especially good about herself when she has been helpful or has given attention to the needs of others. She is skillful in building strong attachments between people, especially family and friends. She tends to have a positive self-image and is optimistic about the future.
[Mother] is logical and practical. She is willing to take risks and shows initiative and spontaneity. She is energetic and task oriented. [Mother] has an easy going and self-confident personal style. She seeks approval by acting in a charming manner. She knows when and how to be affable and accommodating. She knows intuitively how to make others feel special and interesting.
[Mother] has an estimated IQ around the 70th percentile.
[Father] is strongly motivated to achieve his goals. His ambition drives him to be not only successful, but also to be among the best in his field. He is prepared to work hard for long periods to obtain what he believes he deserves. He is generally optimistic about his chances of success.
[Father] is organized and meticulous, inefficiency or laziness may cause him to be overbearing. He is quite comfortable with himself.
[Father] takes charge of his life making things happen rather than waiting for them to occur. He controls and modifies his environment and relationships, arranging events to suit his needs and desires. He takes the initiative and intervenes in the affairs of others. He is not overly concerned about pleasing others, and can be inattentive and insensitive to their feelings and wishes. [Father] prefers to do things his own way and usually makes his decisions with little formal advice from others. He may fail to listen to views contrary to his own. He is self-assured and confident of the correctness of his opinions.
[Father] demands that others conform to his rules and principles. He prefers to be surrounded with compliant people. He can be arrogant, for example, he provided numerous written instructions to [Mother] on the proper care of [their child]. He prefaced copies of his instructions to the GAL with "... [Mother] doesn't understand basic childcare and needs to be reminded to take care of her own son."
[Father] lacks insight and projects blame onto others. He bitterly insisted that [Mother] will "kidnap" [their child]) and defy any court order giving him custody, at the same time, he justified "snatching" [their child] if the court does not rule in his favor.
[Father] distorts and exaggerates risk, for example he said "... [Mother] would get extremely depressed ... suicide was always on my mind with her ... with those killings in Houston, the woman who murdered her five children, and Munchausen's disease (syndrome) ... I always keep my eyes peeled just in case ... we talked about it quite a bit with her doctor in CA." Dr. Cvar, [Mother's] ob/gyn in CA, said "... I didn't think [Mother] was depressed as much as sad and lonely, which was an appropriate mood given her situation ... I always felt that there was something not right, but she wouldn't say anything ... it was almost like he was keeping her a prisoner ... he kept her away from people ... he was domineering and hypervigiliant ... I had a hard time trying to talk to her alone ... he would hover by the door ... I'm not surprised she left him."
[Father] makes a good first impression, however, his relationships tend to be superficial. He has stormy family relationships. He ruminates over perceived injustices and has been unable to sustain any intimate/family relationships over time.
[Father] has an estimated full scale IQ around the 14th percentile. However, his verbal IQ is at the 75th percentile and his performance IQ is at the 4th percentile, a difference that is significant at the .05 level, The IQ test suggests that [Father] has some perceptual-organizational disturbances, particularly with reasoning and analytical thinking. His mother said that perceptual problems were identified when he was placed in special education as a child.

[119] Dr. Schilling also made a number of specific findings. Her report stated that joint custody would not be appropriate because of the parties' inability to communicate with each other, lack of sound problem-soly-ing and decision-making skills, and the fact that they would not likely reside in the same community following the divorce; that Father presented a moderate risk of verbal and emotional abuse to the child; that although both parties are capable of being adequate parents, Father's parenting skills are limited by "his inability to show the child good coping skills, his lack of sensitivity to signals from the child, his impatience and lack of flexibility, his problems sustaining intimate family relationships, his risk of verbal and emotional abuse to the child, and the amount of time the child will be in the care of another when [Father] works;" and that Mother has been the primary caretaker of the child.

[120] In addition to Dr. Schilling's report, the district court relied on the evidence presented at trial by the guardian ad litem, which evidence was favorable to Mother. Even Father's own family members testified that they felt he should not be awarded custody and that Mother was a better parent.

[T21] We cannot agree with Father's contention that the district court did not adequately or accurately address the factors in Wyo. Stat. Ann § 20-2-201, or that its determination of custody was not in the children's best interests. Father did not request that the district court make findings of fact pursuant to W.R.C.P. 52(a), and without making such a request, a party "will not be heard to complain of the absence of formal findings." Resor, 987 P.2d at 148. Also, although the district court did not make specific findings with respect to each factor listed in Wyo. Stat. Ann § 20-2-201, there is ample evidence in the record and in the district court's findings to support its determination that awarding Mother primary physical custody was in the children's best interest. Accordingly, we affirm the district court's award of custody and visitation as a "reasonable balance of the rights and affections of each of the parents, with paramount consideration being given to the welfare and needs of the children." Leitner v. Lonabaugh, 402 P.2d 713, 720 (Wyo.1965).

THs ErrEcr or Gzocraruic DISTANCE ON THE Vistrarion Ricurs or tus Non-CustoptAL PARENT

[122] Father next argues that his right to associate with his children was violated by the district court's visitation order. He asserts that a move by the custodial parent should be a major factor considered under Wyo. Stat. Ann. § 20-2-201(a). He also cites Love v. Love, 851 P.2d 1283, 1288 (Wyo.1993), for the proposition that when assessing the reasonableness of a custody award and visitation arrangement, the district court should consider "whether reasonable visitation is possible for the remaining parent." Finally, he references a Colorado case that sets out four factors a court should consider when fashioning a custody and visitation arrangement where the custodial parent is going to move from the state with a child. In re Marriage of Donovan, 36 P.3d 207, 209 (Colo.App.2001).

[123] We have held, and our statutes provide, that the district court must consider, and weigh accordingly, the effect of geographic distance on the visitation rights of the non-custodial parent. See Wyo. Stat. Ann. 20-2-201(a)(viii) and Resor, 987 P.2d at 151. This factor seems particularly relevant here, where the parties would be separated by thousands of miles.

[124] While Father argues that the district court did not properly weigh this factor, he directs us to no evidence, nor do we find any in the record, to support this assertion. To the contrary, the evidence indicates that the district court was well aware of the potential difficulties involved with the substantial geographic distance:

This case would be very simple but for the fact that [Mother] intends to go back home to Indonesia if she is given custody of the children. Both [Father] and [Mother] testified as to the living conditions in Indonesia. [Mother] described a stable, supportive and loving family in Indonesia. [Mother] has stayed in weekly contact with her family and her mother has visited upon, at least, two occasions. [Mother's] mother was in Lander staying with her daughter and [the children] at the time of the hearing. [Mother] desires to go back to college (she has attended two years of college in Indonesia studying English) and then work after the children reach school age. [Mother] described her family home in somewhat different terms than did [Father}. Such descriptions lead the Court to believe that [Mother] and her family live in a clean, safe and stable environment. Bearing in mind the state of economic and political turmoil in Indonesia, it is still the Court's opinion that [Mother] is, and will be, the better parent to [the children].

[T25] The establishment of visitation schedules has always been within the sound discretion of the district court. Rowan v. Rowan, 786 P.2d 886, 891 (Wyo.1990). When examining the exercise of discretion of a district court, we will evaluate the " 'reasonableness of the choice made by the trial court" " Fergusson, 2002 WY 66, ¶ 9, 45 P.3d at 644 (quoting Vaughn, 962 P.2d at 151). Father was granted two weeks of visitation in the spring, two weeks in the fall, four weeks in the summer, and any other visitation that he may be able to exercise. Although Father's visitation may have been less than what he had hoped for, and more burdensome than he would like, we find it reasonable under the circumstances. See Basolo v. Basolo, 907 P.2d 348, 355 (Wyo.1995) ("Itlhe hardship of a visitation schedule on one parent will not, without more, be viewed as an abuse of discretion, particularly where the parties are separated by great geographical distances.") and Rowan, 786 P.2d at 890-91.

Vistration to Community Warre CHILDREN

[126] Father also claims that the district court abused its discretion by restricting his visitation to the community where the children reside. This claim is mentioned only in the "Summary of the Argument" and "Conclusion" sections of Father's appellate brief and is completely devoid of cogent argument, factual support, or citation to pertinent legal authority. Consequently, we will summarily affirm the district court's decision regarding this issue. VJL v. RED, 2002 WY 25, ¶ 20, 39 P.3d 1110, 1114 (Wyo.2002) (citing Stone v. Stone, 7 P.3d 887, 891 (Wyo.2000) and May v. May, 945 P.2d 1189, 1191 (Wyo.1997)).

$50,000.00 Boxnp REquirEMENT

[127] Finally, Father argues that his right to visit his children effectively has been negated by the district court's requirement that he post a $50,000.00 bond as a condition to exercising visitation. He asserts that although in the past he has been well employed, he is now deeply in debt as a result of the divorcee, and that he will not be in a position to post a bond every time he wants to see his children. He claims that to impose this monetary condition is "quite simply unfair, onerous, punitive, and not sustainable."

[128] A bond-posting requirement, used to ensure compliance with a decree in visitation and custody cases, is within the discretion of the district court and finds support in the law. See Beard v. Beard, 368 P.2d 953, 954 (Wyo.1962) (court had right to add to the order that a bond be furnished if children removed from the state); Leitner, 402 P.2d at 716 (order requiring mother to post bond to assure performance of her obligations under the decree was valid and enforceable); Matter of Marriage of Miller, 600 S.W.2d 386, 388 (Tex.Civ.App.1980) (court upheld order requiring that father post a $5,000.00 bond before taking the children for a two week annual visitation); and 27C C.J.S. Divorce § 634 at 207 (1986 & 2002 Cum.Supp.). Where there is evidence that the non-custodial parent may fail to return the child, a court does not abuse its discretion by requiring a bond as a condition to visitation. See generally Grimditch v. Grimditch, 71 Ariz. 237, 226 P.2d 142, 142 (1951) (court struck down bond where there was nothing in the record to indicate that the father would violate a judgment of the court) and Bienvenu v. Bienvenu, 380 So.2d 1164, 1166 (Fla.App.1980). A bond must not be penal, but rather remedial in nature, and must have some relationship to the expense that the other party may incur in enforcing the decree to which the bond relates. See Metz v. Metz, 108 So.2d 512, 514 (Fla.App.1959). Determination of the proper amount of a bond is within the discretion of the district court, and "the amount should neither be so large that the noncustodial parent is unable to provide the bond, nor so small that it will not ensure compliance with its limitations." McCullough v. Hudspeth, 120 R.I. 598, 389 A.2d 1242, 1245 n. 4 (1978).

[129] Here, the district court characterized the $50,000.00 bond as "security against any attorney's fees [Mother] may incur in enforcing her custody rights under the Decree of Divorce." The district court evidently felt this was necessary given the fact that Father had told Dr. Schilling, during their interview, that if he was not awarded custody, he had a plan to kidnap the children. Father claimed that he had already made contact with individuals in Indonesia and that he would hire a "snatch team" to carry out his plan. He also asserted that "snatching [his children] would not be against the law ... Muslim law and Indonesian law give the children to the father." Additionally, Mother reports that he made similar threats to her just a week prior to trial.

[130] In light of these reported statements by Father and the contentious nature of this case, we hold that the bond requirement was a reasonable exercise of the district court's discretion. Although $50,000.00 is a considerable amount, we find no evidence that the bond is penal in nature and conclude that it bears a reasonable relationship to the expenses Mother would incur if she were compelled to enforce the Decree of Divorce from halfway around the world.

Sanctions

[181] Mother requests that we certify that there is no reasonable cause for this appeal and that we award sanctions against Father. We decline to do so because this case does not rise to the level of "those rare circumstances where an appeal lacks cogent argument, where there is an absence of pertinent authority to support the claims of error, and/or when there is a failure to adequately cite to the record." Amen, Inc. v. Barnard, 938 P.2d 855, 858 (Wyo.1997); Phifer v. Phifer, 845 P.2d 384, 387 (Wyo.1993). Although parts of Father's argument were lacking, we did not consider any position advanced that was not supported by cogent argument or citation to pertinent authority. Basolo v. Gose, 994 P.2d 968, 970 (Wyo.2000)

CONCLUSION

[132] The district court was confronted with the difficult task of fashioning a custody and visitation arrangement that would balance the welfare and needs of children with the rights and affections of parents who would be living on opposite sides of the globe. Although Father claims that the district court abused its discretion in making its determination, we do not agree. While the great distance separating Father and his children is unfortunate, and visiting them in Indonesia may prove difficult, this result is the inevitable product of an international divoree, not an abuse of the district court's discretion.

[4133] Affirmed.

      . Mother's name is spelled differently throughout the record. Therefore, we will refer to the spelling of her name as Erni Widiastuti.

      . At the time of trial, Mother was an illegal alien and subject to deportation. The parties dispute the reasons that Mother was not able to secure permanent residency. Father claims that he completed all the necessary paperwork and went to great lengths to secure residency for his wife, including contacting a local congressman. Mother, however, asserts that she was not able to gain residency because Father refused to sponsor her, told INS agents that she was a prostitute, withheld information sent to her from the immigration office, and that she could not complete the necessary paperwork because of her limited knowledge of the English language.

      . Mother was pregnant when she left in June of 2001 and gave birth to a daughter on January 5, 2002. Although Father did not contest paternity at the divorce proceeding, he initially claimed that he did not know if the child was his, alleging that his own father may have impregnated his wife. However, the district court did not find Father's allegations credible, especially in light of the fact that his father had had a vasectomy many years prior.

      . Although Mr. Russler did not specify what he meant by "here," his prior testimony would indicate that "here" meant in the United States, and probably in Lander.

      . Father deposed Dr. Schilling and a transcript of the deposition was also admitted into evidence without objection.

      . Wyo. Stat. Ann. § 20-2-201(a) provides:
      (a) In granting a divorce, separation or annulment of a marriage or upon the establishment of paternity pursuant to W.S. 14-2-101 through 14-2-120, the court may make by decree or order any disposition of the children that appears most expedient and in the best interests of the children. In determining the best interests of the child, the court shall consider, but is not limited to, the following factors:
      (i) The quality of the relationship each child has with each parent;
      (ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed;
      (iii) The relative competency and fitness of each parent;
      (iv) Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;
      (v) How the parents and each child can best maintain and strengthen a relationship with each other;
      (vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved; ,
      {vii) The ability and willingness of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;
      (viii) Geographic distance between the parents' residences;
      (ix) The current physical and mental ability of each parent to care for each child;
      (x) Any other factors the court deems necessary and relevant.

      . One notable exception to this general rule applies where a district court awards split custody. In that circumstance, the district court "must provide an explanation of its reasoning and place its findings on the record. A reasoned explanation and an expression of findings of a trial " court's conclusion will assure this court that a comprehensive evaluation of all relevant factors occurred prior to the award of custody." Pace, 2001 WY 43, ¶ 17, 22 P.3d at 867.

      . We acknowledge that the international element of this case complicates the maiter and magnifies the effect of the divorce on the parties and the children. Although we have not had prior occasion to address a case such as this, where one parent plans to relocate with the children to a foreign country, other courts have. See Caroll J. Miller, Annotation, Court-Authorized Permanent or Temporary Removal of Child by Parent to Foreign Country, 30 AL.R.Ath 548 (1984 & 2002 Supp.) and M. David LeBrun, Annotation, Propriety of Awarding Custody of Child to Parent Residing or Intending to Reside in Foreign Country, 20 A.L.R.4th 677 (1983 & 2002 Supp.).
      The compiled cases illustrate the competing benefits and limitations in awarding or denying custody to a foreign parent. Many of the potential issues in the case before us have been addressed by other courts, including: effect of international custody arrangements on the noncustodial parent's visitation rights; the general cultural and sociological considerations as affecting the propriety of such an award; living conditions, ideals and cultural opportunities of the foreign country as they affect the child's best interest; and the impact and significance of different educational opportunities in foreign countries. Despite the factual differences in these cases, there is one common analytical thread in virtually every case: the best interest of the child is paramount in any award of custody and visitation, and the trial court has a large measure of discretion in making that award. Whether one parent is moving with the children across town or across the world, the analysis remains the same.

      . In this appeal, the guardian ad litem joins in Mother's brief and contends that the district court's order should be affirmed in all respects.

      . Father does not apply these factors to the particular facts of this case nor does he argue for adoption of them by this Court. Although we acknowledge that consideration of these factors may be worthwhile to a district court making a custody determination where a parent is leaving the jurisdiction, we do not adopt them. Nonetheless, they could potentially be considered as "other factors the court deems necessary and relevant" in determining the best interest of the child pursuant to Wyo. Stat. Ann. § 20-2-201(a)(x). The four factors are:
      1) whether there is a reasonable likelihood the proposed move will enhance the quality of life for the child and the custodial parent; 2) whether the court is able to fashion a reasonable visitation schedule for the noncustodial parent after the move and the extent of the noncustodial parent's involvement with the child at the old location; 3) whether there is a support system of family or friends, either at the new or old location; and 4) the educational opportunities for the child at the new and old locations.
      In re Marriage of Donovan, 36 P.3d at 209.