author: KITE, Justice.

text:
    2004 WY 15
    Aaron A. GOMEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-229.
    Supreme Court of Wyoming.
    Feb. 27, 2004.

      Representing Appellant: Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, PAP; Corey M. Beato, Student Intern; and Neil Skousen, Student Intern.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] While on probation, Aaron Gomez was arrested and incarcerated on several unrelated charges. The state then filed a petition to revoke his probation for violating the terms of his probation. He was convicted and sentenced on one of the charges. Mr. Gomez sought credit against his sentences for time spent in custody prior to sentencing, and sought to have the probation revocation proceedings dismissed due to delay of the proceedings. The district court denied Mr. Gomez credit for time served prior to his conviction finding he was incarcerated because of his probation violation. We reverse the district court and remand with instructions to credit Mr. Gomez’s battery sentence with the time he served from his arrest on that charge.

ISSUES

[¶ 2] Appellant presents the following issues:

1. Whether the trial court’s denial of appellant’s pro se “Motion to Correct Illegal Sentence: Defendant Denied Pretrial Detention Time Credit” was error and violated appellant’s right to equal protection and due process of law? Additionally, whether because of the length of time for which Appellant was held with no credit being given, Appellant’s right to be free from double jeopardy was also violated?
2. Whether the probation revocation action against appellant should be dismissed because of the unconscionable delay in disposition?

[¶ 3] Appellee states the issues as follows:

1. Did the district court err in denying appellant’s motion to correct illegal sentence, which sought credit against appellant’s sentences for presentence incarceration?
2. Should the proceeding to revoke appellant’s probation be dismissed because of delay in conducting the revocation hearing?

FACTS

[¶ 4] On September 8, 1999, Mr. Gomez was charged with domestic violence in violation of Wyo. Stat. § 6 — 2—501(b) and (f)(ii) (Lexis 1999). He pleaded guilty to that charge and was sentenced to eighteen to twenty-four months, to be served consecutively to a previous prison sentence stemming from the same incident. After completing the first sentence, his sentence on the September 8, 1999, domestic violence charge was suspended and Mr. Gomez was placed on two years probation to begin on March 19, 2001.

[¶ 5] On June 8, 2001, less than three months after beginning his probation, Mr. Gomez was charged with kidnapping, in violation of Wyo. Stat. § 6-2-201(a) and (d) (LexisNexis 2001); stalking, in violation of Wyo. Stat. § 6-2-506(e)(iii) (LexisNexis 2001); and battery on another household member in violation of § 6-2-501(b) and (f)(ii). A warrant was issued for Mr. Gomez’s arrest on June 8, 2001, and, while not established by the record, the parties agree that Mr. Gomez was taken into custody in California on June 24, 2001, pursuant to that warrant.

[¶ 6] In relation to the June 8, 2001 charges, Mr. Gomez filed an Affidavit of Indi-gency on July 24, 2001, and his bond was set at $50,000 cash. At his preliminary hearing, the stalking and battery charges were dismissed, but Mr. Gomez was bound over to district court on the kidnapping charge. The bond was continued.

[¶ 7] The state filed a petition to revoke Mr. Gomez’s probation on July 18, 2001. As grounds for revocation, the petition alleged he failed to report to his probation officer and he left the state of Wyoming without permission. Conveniently for the state, Mr. Gomez was already in custody on the other charges, and had been since June 24, 2001.

[¶ 8] On August 2, 2001, Mr. Gomez was again charged with one count of stalking in violation of § 6 — 2—506(e)(iii) and one count of felony battery in violation of § 6-2-501(b) and (f)(ii) stemming from the same incident involving the same victim. Mr. Gomez again filed an Affidavit of Indigency and counsel was appointed. The August 2, 2001, stalking charge was dismissed, and the June 8, 2001, kidnapping charge and August 2, 2001, felony battery charges were consolidated for trial. Mr. Gomez pleaded not guilty to both charges and the court set bond at $50,000 cash for all cases.

[¶ 9] On December 11, 2001, a jury found Mr. Gomez not guilty of kidnapping, but guilty of felony battery. On March 4, 2002, a sentencing hearing was held on Mr. Gomez’s conviction for felony battery. At that hearing, the district court discovered Mr. Gomez’s petition for revocation of probation was still pending. The court added Mr. Gomez’s most recent conviction as additional cause to revoke his probation and accepted Mr. Gomez’s admissions to the probation violations. Sentencing was reset for March 8, 2002.

[¶ 10] On March 8, 2002, the district court revoked Mr. Gomez’s probation and reinstated his original sentence of 18 to 24 months. On the felony battery charge, the district court sentenced Mr. Gomez to a term of 21 to 24 months to be served consecutively to the reinstated 18 to 24 month sentence. The district court credited Mr. Gomez’s new felony battery conviction for time served from the date of conviction to the date of sentencing. However, it denied Mr. Gomez credit for any other time he spent in county jail, including the time from his arrest on the battery charges to his conviction on those charges.

[¶ 11] Mr. Gomez filed a pro se motion on April 25, 2002, entitled “Motion to Dismiss Probation and Probation Violation.” He argued he had not received a timely revocation hearing, and, therefore, the petition to revoke his probation should be dismissed. The district court denied the motion, finding there had been good cause to delay the proceedings. The court said: “Proceedings on the revocation were postponed because Defendant had several charges pending. Therefore, [the court had] good cause to extend the time limits in W.R.Cr.P. 39(a)(4)(B).”

[¶ 12] Less than two weeks after he filed the motion to dismiss his probation, Mr. Gomez filed a motion to correct an illegal sentence. In that motion, Mr. Gomez argued that he was entitled to credit because he was incarcerated due to his inability to post bond and was denied a timely revocation hearing. He requested the trial court give him credit for time served and/or dismiss the probation revocation petition. The trial court denied Mr. Gomez’s motion. Mr. Gomez appealed the district court’s denial of his motion to correct the sentence, but did not appeal the denial of his motion to dismiss the probation revocation petition.

STANDARD OF REVIEW

[¶ 13] The decision to grant or deny a motion to correct an illegal sentence is usually left to the sound discretion of the district court. Young v. State, 2002 WY 68, ¶ 7, 46 P.3d 295, ¶ 7 (Wyo.2002); see also Segnitz v. State, 7 P.3d 49, 52 (Wyo.2000).

The district court’s decision is given considerable deference unless a rational basis does not exist for it. A criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, provided that such confinement was because of his inability and failure to post bond on the offense for which he was awaiting disposition. A sentence, which does not include credit for presentence incarceration, is illegal and constitutes an abuse of discretion. A defendant is not, however, entitled to credit for the time he spent in custody when that confinement would have continued despite his ability to post bond.

Young, 117 Because of equal protection and double jeopardy concerns, we have held it is error for a trial court to refuse to credit a sentence for pre-sentence incarceration if the reason for the detention is the defendant’s inability to post bond. Halbleib v. State, 7 P.3d 45 (Wyo.2000).

DISCUSSION

[¶ 14] Mr. Gomez argues the district court’s denial of his pro se motion to correct an illegal sentence was error and violated his right to equal protection, due process of law and double jeopardy. The state maintains that the district court did not err in denying Mr. Gomez’s motion to correct an illegal sentence because he remained incarcerated not because of his inability to post bond, but because he was held on other charges for which he was acquitted.

[¶ 15] Despite both parties addressing the issue of whether the petition to revoke probation should have been dismissed because the hearing was not timely held as required by W.R.Cr.P. 39 (LexisNexis 2003), Mr. Gomez did not appeal the order denying the motion to dismiss probation and probation violation. Rule 2.01 of the Wyoming Rules of Appellate Procedure provides that “an appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable order.” The timely filing of a notice of appeal is jurisdictional. Cosco v. Uphoff, 2003 WY 30, ¶ 4, 66 P.3d 702, ¶ 4 (Wyo.2003). Consequently, Mr. Gomez is barred from challenging the district court’s denial of his motion to dismiss the probation revocation proceeding. We will discuss the facts surrounding the probation revocation only to the extent they are relevant to the issue of credit for time served.

[¶ 16] We must decide if Mr. Gomez was incarcerated because of criminal charges for which he was convicted, in which case he is entitled to credit for time served on those charges, or if he was incarcerated because of his probation revocation or because of charges of which he was acquitted, in which case he does not get credit for time served. The district court denied Mr. Gomez’s request for credit on his battery sentence for time served prior to the conviction relying on Halbleib v. State, 7 P.3d 45 (Wyo.2000). The district court reasoned Mr. Gomez was being held on the petition to revoke his probation, not because of his inability to post bond, and he was not entitled to credit for time served while on administrative hold for probation revocation. However, we discern a logical inconsistency in the district court’s reasoning. When ruling on the propriety of the probation revocation proceedings, the district court concluded the delay was due to the disposition of his other charges, yet when considering credit for time served, it ignored those other charges and concluded he was incarcerated because of pending revocation proceedings.

[¶ 17] This inconsistent reasoning cannot deprive Mr. Gomez of credit for the time he served prior to his conviction on the battery charge. He was originally arrested and incarcerated on battery and kidnapping charges, not for violation of his probation. While we can speculate what might have occurred on the probation revocation had it been timely considered, no question exists that Mr. Gomez would have remained incarcerated on the other charges unless he could post the required bond. W.R.Cr.P 39(a)(4)(B) requires that a probation revocation hearing be held within 15 days after the probationer’s first court appearance if he is in custody due to the revocation proceedings, or otherwise within 30 days. The district court should not deny credit against a separate sentence for nearly eight months of confinement during which Mr. Gomez was not provided a revocation hearing. In other words, if Mr. Gomez would have been entitled to credit against his battery sentence for presentence confinement but for the fact that he was also being held for a probation revocation proceeding, he should not be penalized for the delay in providing that hearing.

[¶ 18] A sentence that does not include proper credit for presentence incarceration is illegal. Smith v. State, 988 P.2d 39, 40 (Wyo.1999). A criminal defendant is entitled to credit against his sentence for the time he was incarcerated prior to sentencing, provided that the confinement was due to his inability and failure to post bond on the offense for which he was awaiting disposition. Id. The purpose of this rule is to provide equal protection to defendants who are unable to post bond because of their indigence. A defendant is not, however, entitled to credit for the time he spent in custody when his confinement would have continued despite his ability to post bond. Meek, 956 P.2d at 358; Renfro, 785 P.2d at 498.

[¶ 19] The district court set bond at $50,000 for “all cases.” It is unclear whether or not “all” cases included Mr. Gomez’s probation revocation proceeding. Had Mr. Gomez been able to post bond, he would have been released or the district court would have likely held a more timely probation revocation hearing. However, because he was indigent, he was unable to post the cash bond. Consequently, even if Mr. Gomez’s hearing on his probation revocation had not been delayed, he would have remained in jail on the other pending charges and, thus, he is entitled to credit on his battery conviction for the time he spent incarcerated.

[¶ 20] The court properly denied credit to Mr. Gomez’s 1999 sentence for domestic violence after his probation was revoked and his sentence was reinstated. In addition to raising problems of double crediting for time served on the battery charge, this Court continues to adhere to the holding that incarceration pending probation revocation proceedings is qualitatively different from presentence incarceration. Halbleib, 7 P.3d at 49. Therefore, Mr. Gomez is not entitled to credit on his reinstated probation sentence for time served while he was awaiting his revocation hearing because it was considered an administrative hold. He is also not entitled to credit for the time he served from June 24 to August 1, 2001, which was due solely to the stalking charges that were dismissed and the kidnapping charges for which he was acquitted. The state argues that because Mr. Gomez was acquitted of kidnapping, he should receive no credit for the entire time he was in jail pending the trial on kidnapping. If we accept that position as correct, we would have to ignore the fact that he was also incarcerated, and unable to post bond, on the felony battery charge for which he was ultimately convicted. This we cannot do. Irrespective of the kidnapping acquittal, Mr. Gomez served substantial time awaiting trial on the felony battery charge for which he was convicted, and is entitled to credit for that time on his battery sentence.

[¶ 21] We reverse and remand to the district court .with instructions to include the time Mr. Gomez served from the date he was arrested on the battery charge, August 2, 2001, until his conviction, December 11, 2001, as credit for time served on his battery conviction.


source: Caselaw Access Project

license: Public Domain

text:
    2004 WY 17
    Reno BROWN, Appellant (Plaintiff), v. William B. JOHNSTON, Michael A. Reisbeck, and Horse Creek Properties, Inc., Appellees (Defendants).
    No. 03-71.
    Supreme Court of Wyoming.
    March 3, 2004.

      Representing Appellant: David G. Lewis, Jackson, Wyoming.
    Representing Appellee: James K. Lubing of James K. Lubing Law Office, Jackson, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Lessor filed suit seeking a declai-a-tory judgment that lessees violated the lease, termination of the lease, and ejection of lessees from the leased property. Lessees counterclaimed alleging breach of good faith and fair dealing, breach of covenant of quiet enjoyment, and breach of contract. After a trial, the district court declared lessees did not materially breach the lease agreement, denied lessor’s claim for ejectment, found for lessees on their claim for breach of the covenant of quiet enjoyment and awarded lessees nominal damages. Lessor appeals from the district court’s judgment. We affirm.

ISSUES

[¶ 2] Both parties raise the following issues:

I. Whether, as a matter of law, [Lessees are] exempted from the provisions of a right-of-way easement passing through the leasehold, entitling them to park the vehicles of their restaurant and bar customers on the right-of-way easement;
II. Whether the trial court’s finding that [Lessees] did not materially breach any provisions of the lease agreement was inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence, and contrary to the law of Wyoming; and
III. Whether the trial court’s findings on the counterclaim that [Lessees] suffered nominal damages for violation of their covenant of quiet enjoyment was inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence, and contrary to the law of Wyoming.

FACTS

[¶ 3] This case involves a tract of land located south of Jackson, Wyoming. In 1972, the owner of the land, William Lineberry, established two businesses housed in separate buildings on the land, Bill’s Open Pit Barbeque and Steak House and, next door, a tourist attraction named Teton Mystery. In 1989, following concerns over the use of Horse Creek Road, which runs along the southern boundary of the property, Mr. Li-neberry filed suit against his neighbors to the east seeking to establish an easement and cause his neighbors to pay for their use of the portion of the road. To resolve the litigation, Mr. Lineberry and his neighbors entered into a stipulation, which created a 16-foot right-of-way easement along the southernmost boundary of the Lineberry property. In March of 1990, the district court entered an order establishing an easement pursuant to the parties’ stipulation. The stipulation provided that Mr. Lineber-ry’s neighbors could use the easement solely for ingress and egress to their land, established a 15-mile per hour speed limit, and stated that it was granted “on the express condition that it shall be utilized in conformity with past uses.” According to Mr. Line-berry, past uses included allowing customers of the restaurant to park along the southern edge of the easement.

[¶4] Shortly after creation of the easement, Mr. Lineberry sold his restaurant business and building to William B. Johnston, Michael A. Reisbeck and Horse Creek Properties, Inc. (collectively referred to as Mr. Johnston). Mr. Lineberry retained ownership of the Teton Mystery business, the building in which it operated, and the land upon which it was located. Mr. Line-berry also retained ownership of the land on which the restaurant was located, but entered into a fifteen year lease with Mr. Johnston for that portion of the land underneath and adjacent to the restaurant building, including land burdened by the right-of-way easement. Because Mr. Lineberry continued to own Teton Mystery, the sales contract provided that he and Mr. Johnston would share the parking area for their respective businesses, cooperate with each other in regard to it, refrain from interfering with the other’s business and jointly maintain the common parking area. Mr. Johnston changed the name of the restaurant to Horse Creek Station and operated it according to the lease with Mr. Lineberry until 1997. Under Mr. Johnston’s ownership, restaurant customers continued to park on the southern edge of the easement along the fence, as they did when Mr. Lineberry operated the restaurant, without complaint from Mr. Lineberry.

[¶ 5] In 1997, Mr. Lineberry sold the land upon which the restaurant and Teton Mystery were located to Reno Brown. Under the contract establishing the terms of the sale, Mr. Lineberry assigned Mr. Brown his interest in the lease agreement between himself and Mr. Johnston. Following the purchase, Mr. Brown and Mr. Johnston entered into an agreement modifying the original lease agreement. Among other provisions, the modification included a paragraph prohibiting Mr. Johnston from engaging in activities constituting a nuisance or disturbing the quiet enjoyment of others. Together, the original lease agreement and the modification provided the terms and conditions for the lease between Mr. Brown and Mr. Johnston. Pursuant to those terms, the shared parking arrangement that existed previously was to continue in effect, meaning Mr. Johnston and his customers could park in the leased and unleased parking areas, including the area next to Teton Mystery belonging to Mr. Brown, and Mr. Brown could park on the leased portion in front of the restaurant.

[¶ 6] After purchasing the property, Mr. Brown became concerned about the easement owners’ and Mr. Johnston’s use of the shared parking area and easement. Specifically, he complained the easement owners were not obeying the 15 mph speed limit on Horse Creek Road and Mr. Johnston’s customers were parking along the road on the south side of the easement. In an attempt to slow down speeding vehicles, Mr. Brown dug a speed dip across the portion of the easement adjacent to Teton Mystery. This caused easement users to drive off the easement and through the shared parking area to avoid the speed dip. Mr. Brown then placed two railroad ties along the north boundary of the easement in an attempt to prevent cars from leaving the easement to avoid the speed dip. One of the easement owners was allegedly injured when he tried to move one of the ties and sent Mr. Brown a letter threatening legal action for the injury and interference with the easement and demanding that Mr. Brown remove the obstructions and repair the roadway. Also in the letter, the easement owner complained about restaurant customers “continuously parking in the limited available right-of-way thereby requiring people to drive off the right-of-way through private property” in order to access their property. As a result, Mr. Brown sent a letter to Mr. Johnston demanding that he instruct his customers not to park their cars in a manner that obstructed the easement. Mr. Brown also sent a letter to the easement owner advising him that the speed bump would remain in place to encourage traffic to slow down.

[¶ 7] Shortly after this exchange of correspondence, Mr. Brown met with Mr. Johnston to discuss a number of problems related to the lease agreement. By letter dated June 15, 1999, addressed to Mr. Johnston, Mr. Brown memorialized what was discussed at the meeting. The letter does not mention the problems associated with the easement. However, by letter dated June 16, 1999, Mr. Brown again advised Mr. Johnston that parking could not continue on the easement. Apparently customers continued to park on the easement and Mr. Brown wrote Mr. Johnston another letter on July 9, 1999, expressing his concerns about the parking situation, notifying Mr. Johnston that he was in default on the lease, and advising him the lease would be terminated in thirty days if he did not correct the situation.

[¶ 8] Meanwhile, in addition to the parking issue, another problem between the parties was developing. The agreement provided that Mr. Johnston would pay all taxes due on the restaurant “as they become due and before they become delinquent.” Mr. Brown apparently received the tax notice for all of the property, including the restaurant. In December of 1998, Mr. Brown paid all of the 1998 taxes and then, in January of 1999, wrote a letter to Mr. Johnston requesting reimbursement for his share of the taxes. In June of 1999, claiming that Mr. Johnston did not reimburse him for his share of the 1998 taxes until a month after his January request, Mr. Brown asked Mr. Johnston to pay his share of the 1999 property taxes in advance. The following year, Mr. Johnston apparently requested advance notice of the amount of his portion of the taxes and so, by letter dated September 11, 2000, Mr. Brown advised Mr. Johnston of the amount and requested payment by December 31, 2000. Mr. Johnston did not pay Mr. Brown for his portion of the 2000 property taxes until January 2, 2001, but offered to pay interest on the late payment. Mr. Johnston’s check, however, was issued to the Teton County Treasurer, not Mr. Brown, causing Mr. Brown to return the check to Mr. Johnston. Despite the delays, Mr. Brown received payment for the 2000 property taxes within thirty days, in compliance with the default provision of the lease.

[¶ 9] In April of 2000, another dispute arose between Mr. Brown and Mr. Johnston. Both the original lease agreement and the modification provided for a cost of living rental increase in accordance with the Consumer Price Index effective every five years during the lease term. The first such increase during Mr. Brown’s ownership was to be paid in April of 2000. The agreement also provided that rent was to be paid in equal monthly installments on the first day of each month with a seven-day grace period. If Mr. Johnston failed to pay the rent within the seven-day period, he would be assessed a late charge of 10% of each delinquent payment. Additionally, if Mr. Johnston failed to pay the rent when due, Mr. Brown could terminate the lease if Mr. Johnston did not cure the default within 30 days after receiving notice from Mr. Brown of his failure to pay.

[¶ 10] On April 1, 2000, Mr. Johnston failed to add the cost of living adjustment to his rental payment, and instead issued a check to Mr. Brown in the amount of the previous month’s rent. Mr. Brown accepted that check and continued to accept and cash Mr. Johnston’s checks without the additional cost of living adjustment through September 2000. After receiving September’s rent, Mr. Brown sent Mr. Johnston a certified letter notifying him that he owed additional rent pursuant to the cost of living adjustment provision in the lease. Mr. Johnston continued to send rent payments without the cost of living adjustment through January of 2001. Mr. Brown accepted all but the January check, which he returned to Mr. Johnston.

[¶ 11] By certified letter dated January 3, 2001, Mr. Brown advised Mr. Johnston that he considered him to be in default of the lease because, among other issues not raised on appeal, he failed to timely pay his share of the property taxes in accordance with the terms of the lease, continued to allow customer parking on the easement contrary to Mr. Brown’s demands, and failed to pay cost of living rental increases in compliance with the lease. Within thirty days of receiving the letter, Mr. Johnston issued a check to Mr. Brown for the cost of living adjustment for all months since April 2000, which Mr. Brown refused to accept.

[¶ 12] In February 2001, Mr. Brown filed a declaratory judgment action seeking a declaration that Mr. Johnston was in violation of the lease agreement. Mr. Brown alleged Mr. Johnston breached the sales contract and lease agreement by: (1) allowing customers to park along the easement in violation of the quiet enjoyment, nuisance, public policy and trespass provisions of the agreements; (2) failing to pay cost of living rental increases as required by the lease; and (3) failing to pay the 2000 property taxes before December 31. Mr. Brown asked that Mr. Johnston be ejected from the property. Mr. Johnston counterclaimed, alleging that Mr. Brown had violated the covenant of good faith and fair dealing and the covenant of quiet enjoyment provision of the contract.

[¶ 13] During the pendency of that litigation, in July 2001, Mr. Brown placed concrete barriers along the southern edge of the parking area in an attempt to delineate the line between the easement and the parking area and keep vehicular traffic on the easement. In response, Mr. Johnston filed a motion for temporary restraining order and preliminary injunction against Mr. Brown, alleging the concrete barriers interfered with the restaurant business in violation of the lease agreement. After a hearing, the district court denied the motion and assigned the dispute to mediation. The parties were unsuccessful in resolving their differences through mediation and the matter was set for trial,

[¶ 14] After a two day bench trial, the district court found Mr. Johnston had not materially violated the lease agreement, Mr. Brown had failed to follow the provisions in the lease for notice and opportunity to cure any alleged breaches, Mr. Brown, by his conduct, waived any alleged breaches, and Mr. Brown breached the covenant of quiet enjoyment by placing the concrete barricades in the parking lot. Accordingly, the district court denied Mr. Brown’s request for Mr. Johnston’s ejectment from the property, and awarded Mr. Johnston nominal damages in the amount of $250. Mr. Brown appeals from the district court’s findings of fact and conclusions of law.

STANDARD OF REVIEW

[¶ 15] Our review of the district courts findings is governed by the following standards:

We review the trial court’s conclusions of law de novo. The trial court’s findings of fact are subject to the clearly erroneous standard:
The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail re-weighing disputed evidence. Findings of fact will not be set aside unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
Also, in reviewing a trial court’s findings of fact, we assume that the evidence of the prevailing party below is true and give that party every reasonable inference that can fairly and reasonably be drawn from it. We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law.
We affirm the trial court’s findings if there is any evidence to support them.

Life Care Centers of America, Inc. v. Dexter, 2003 WY 38, ¶ 7, 65 P.3d 385, ¶ 7 (Wyo.2003) (citations omitted). Because this Court does not weigh the evidence de novo, we may not set aside a finding merely because we might have reached a different result. Pagel v. Franscell, 2002 WY 169, ¶ 7, 57 P.3d 1226, ¶ 7.

DISCUSSION

[¶ 16] On appeal, Mr. Brown raises three issues. First, he takes issue with the district court’s conclusion that Mr. Johnston was not subject to the easement running across the leased property and was thus entitled to allow his customers to park on the easement. Second, he contends the district court erred in finding that Mr. Johnston did not materially breach the lease agreement, that Mr. Brown waived any such breach, and that he failed to follow the lease provisions for notice of default. Third, he contends the district court erred by awarding Mr. Johnston nominal damages for his breach of the covenant of quiet enjoyment.

District Court’s Findings that Mr. Johnston Was Not Subject to the Easement and Mr. Brown Could Not Litigate Easement Issues

[¶ 17] Mr. Brown’s first assignment of error relates to the following finding of the district court:

6. The Court finds that the original lease agreement signed by defendants with plaintiffs predecessors, and the Modification of Lease Agreement signed by the parties ... as well as the Order Establishing Easement ... do not restrict the defendants’ use of the leased premises for vehicular access, and the defendants are not subject to the restrictions of the road easement which pertains to other persons in addition to plaintiff, who are not parties to this lawsuit. The persons for whom the easement was created are not parties to this case. Plaintiff is the owner of the servient estate under the easement and it is improper for plaintiff to seek to litigate easement issues against these defendants under the circumstances of this case.

Mr. Brown contends the district court erred in concluding first that Mr. Johnston was not subject to the easement, and second that he could not litigate easement issues against Mr. Johnston.

[¶ 18] Citing Wyo. Stat. Ann. § 34-1-121(a) (LexisNexis 2003), Mr. Brown argues that Mr. Johnston’s lease was subject to the easement just as other interests in land are subject to previously recorded instruments touching upon interests in lands. Mr. Brown further argues that the characterization of his interest in the easement portion of the leased property as a servient estate was relevant only to the extent that matters pertaining to the southerly sixteen feet of the property were at issue. Because this dispute involved interference by Mr. Johnston with his quiet enjoyment of the unleased portion of the property over which he retained ownership and the shared parking area, he argues the district court incorrectly found he could not litigate those claims against Mr. Johnston.

[¶ 19] We agree that Mr. Johnston’s lease was subject to the easement in the sense that the land he leased was burdened by the preexisting easement, preventing him from putting the southerly sixteen feet of the property to a use inconsistent with the easement. However, we are not convinced the district court found otherwise. Reading the finding in paragraph 6 of the order in the context of the record as a whole, it appears to this Court that the thrust of the district court’s finding was that nothing in the sale, lease or easement documents prohibited Mr. Johnston’s use of the leased premises, including the easement, for parking and any claim that the easement was violated by such use was between the parties to the easement, i.e., Mr. Brown, as successor in interest to Mr. Line-berry, and the landowners to the east for whose benefit the easement was granted, not Mr. Johnston. Regardless of what the district court meant by the finding, it is clear' Mr. Johnston’s interest in the restaurant as buyer and the real property as lessee was subject to the pre-existing, recorded easement. Mueller v. Hoblyn, 887 P.2d 500, 505 (Wyo.1994). See also Restatement (Third) of Property § 5.2 (1977).

[¶ 20] Somewhat more complicated is Mr. Brown’s claim that the district court erred in finding he could not litigate matters pertaining to the easement in an action against Mr. Johnston. The record is clear that Mr. Brown brought claims against Mr. Johnston for breach of the sale and lease documents, not for violation of the easement. However, in his motion to dismiss, Mr. Johnston raised the question of whether Mr. Brown was the proper party to bring an action to enforce the easement. Mr. Johnston raised the issue again in a trial brief and renewed his motion to dismiss through counsel during opening statements. As reflected in paragraph 6 of the order quoted above, the district court ruled on the motion after the trial when it found Mr. Brown, as owner of the servient estate under the easement, could not properly litigate easement issues against Mr. Johnston under the circumstances of this case. Implicit in the district court’s findings is the conclusion that the easement owners, the neighbors to the east of the leased property, were proper parties to litigation concerning the easement. Mr. Brown appeals that finding, arguing first that parking cars on the easement interferes with use of the easement by the owners and then arguing that the district court’s finding was erroneous because rather than seeking to enforce the easement, Mr. Brown sought enforcement of the terms of the lease. But for Mr. Brown’s appeal of the district court finding in paragraph 6 of the judgment, we might well have concluded it was an incidental finding not necessary to resolution of the claims stated in the complaint. With his appeal of the finding, however, Mr. Brown has placed the issue squarely before us. The manner in which he has done so, as well as his testimony at trial, makes it apparent despite his argument to the contrary that what he sought by his complaint, at least in part, was an order prohibiting parking by Mr. Johnston’s customers on the easement.

[¶ 21] To the extent Mr. Brown sought enforcement of the rights of the easement owners, the district court’s ruling is correct — the easement owners were the proper parties to an action to enforce their rights under the easement. If Mr. Johnston’s practice of allowing his customers to park on the easement interfered with the neighboring property owners’ use of the easement, they had the legal right to enforce the easement. Restatement (Third) of Property § 8.1 (1977). Similarly, to the extent that Mr. Brown sought a court order requiring the easement owners to obey the speed limit or prohibiting them from trespassing on his property in accessing their property, his claim lay against them and not Mr. Johnston. Finally, to the extent Mr. Brown sought a court order requiring Mr. Johnston to refrain from allowing his customers to park on the easement because parking on the easement was causing the easement owners to trespass on his property, Mr. Brown’s claim lay against Mr. Johnston for violation of the lease. Because the first two of these potential claims involve the easement owners who are not parties to this action, we are left to resolve only the question of whether Mr. Johnston’s action in allowing customers to park on the easement violated his lease with Mr. Brown.

Breach of Lease Agreement

[¶ 22] Mr. Brown contended that Mr. Johnston breached the lease agreement by (1) allowing patrons to park on the easement, (2) failing to pay the cost of living rental increases, and (3) failing to timely pay the property taxes for the year 2000.

[¶23] Contract law governs the construction and interpretation of a lease. Pavuk v. Rogers, 2001 WY 75, 30 P.3d 19 (Wyo.2001). A lease is to be construed as a whole, with the objective to find reasonable construction which, if possible, does not render any provision meaningless. Brazelton v. Jackson Drug Co., Inc., 796 P.2d 808, 810 (Wyo.1990). We resolve any doubts as to the meaning of a lease against the drafting party, in this case Mr. Brown. Id. If the lease terms are ambiguous, we may consider extrinsic evidence to determine the intent of the parties. Wadi Petroleum, Inc. v. Ultra Resources, Inc., 2003 WY 41, 65 P.3d 703 (Wyo.2003).

1. Parking on the easement

[¶24] In claiming that parking on the easement violated the lease modification agreement, Mr. Brown points to the following provision: “The Tenant shall not commit, or suffer to be committed, any nuisance or other act or thing against public, policy, or which may disturb the quiet enjoyment of any person.” He claims the parking along the easement created a nuisance and interfered with his quiet enjoyment of the un-leased portion of his property and the shared parking area in that it obstructed the easement and caused the easement owners to trespass on his property.

[¶ 25] We interpret express covenants according to the obvious intention of the parties, in consonance with the reasonable sense of the words employed, and we will not extend express covenants by interpretation unless their implication is clear and undoubted. Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, 793 (1945). Additionally, in determining the parties’ intention as gleaned from the language, we look to the lease as a whole, keeping in mind the situation of the parties when the lease was made, its subject matter, and purpose of its execution. Bornel, Inc. v. City Products Corp., 432 P.2d 489, 492 (Wyo.1967). We have defined nuisance as “a class of wrongs which arise from an unreasonable, unwarranted, or unlawful use by a person of his own property, working an obstruction or injury to the right of another.” Edgcomb v. Lower Valley Power and Light, Inc., 922 P.2d 850, 859 (Wyo.1996). Applying the definition in Edgcomb, we held that where the scope of an easement was not exceeded and the uses to which it was put were not unreasonable, unwarranted or unlawful, they did not constitute a nuisance.

[¶26] The unambiguous language in the stipulation creating the easement in this case stated that it was to be used in conformity with past uses. The undisputed evidence showed that parking was allowed on the easement prior to and continuously after the easement was granted. There was no showing that the manner or extent of parking along the easement by Mr. Johnston’s patrons changed in any significant way after Mr. Brown purchased the property. Given these facts, the trial court would have been hard pressed to conclude that use of the southern edge of the easement for parking was unreasonable, unwarranted or unlawful so as to constitute a nuisance in violation of the lease. We hold that the trial court’s ruling with respect to the nuisance provision of the agreement was not clearly erroneous.

[¶ 27] Black’s Law Dictionary defines “quiet enjoyment” as, “the possession of real property with the assurance that the possession will not be disturbed by a superior title.” Black’s Law Dictionary 550 (7th ed.1999). In this case, given the language of the modified lease agreement expressly imposing on the tenant the obligation to refrain from acts disturbing the quiet enjoyment of others, Mr. Johnston was prohibited from engaging in acts that disturbed Mr. Brown’s possession of his property. The evidence presented at trial showed that since the inception of the restaurant, prior to the creation of the easement, restaurant patrons were allowed to park along the southern edge of Horse Creek Road. Mr. Lineberry allowed his restaurant patrons to park along the fence next to the road, and after Mr. Lineberry sold the restaurant to Mr. Johnston, restaurant customers continued to park along the road without complaint from Mr. Lineberry. The easement was granted with the express condition that it be used in conformity with existing uses. Parking along the easement was an existing use. Thus, from the beginning, those using the easement to access theft property did so subject to the condition that restaurant customers would park along the southern edge of the easement.

[¶28] When Mr. Brown purchased the property from Mr. Lineberry, he stepped into Mr. Lineberry’s shoes. He purchased the property subject to the existing lease with Mr. Johnston and burdened by the existing easement containing the language that it was subject to past uses. Mr. Brown acknowledged that customers had been parking along the easement for thirty years.

[¶ 29] The easement owners did not complain about cars parked on the easement until Mr. Brown sought first to slow traffic down by constructing the speed dip and then, when the speed dip only caused traffic to drive through the shared parking area, by placing railroad ties between it and the parking area. In fact, two of the easement owners testified at trial that Mr. Johnston was a good neighbor and they were content with permitting Mr. Johnston to allow his customers to park along the easement. From the evidence presented, a court might reasonably conclude that the problem of easement owners trespassing on Mr. Brown’s property resulted not from any actions by Mr. Johnston, but from Mr. Brown’s efforts to slow traffic on the easement by constructing a speed dip. In any event, from our review of the record we conclude the district court’s factual determinations with respect to the parking issue were supported by the evidence and were not, therefore, clearly erroneous. Consequently, the district court’s holding that parking on the easement caused no violation of the terms of the lease was proper.

2. Cost of living increase

[¶ 30] Mr. Brown asserts the district court erred in finding that Mr. Johnston did not materially breach the lease agreement by failing to pay the cost of living rental increase. On April 1, 2000, when Mr. Johnston failed to add the cost of living adjustment to his rental payment and instead issued a check to Mr. Brown for the original amount, Mr. Brown accepted the payment. Mr. Brown continued to accept and cash Mr. Johnston’s checks without the additional cost of living adjustment through September of 2000. Although Mr. Brown sent Mr. Johnston a certified letter after receiving September’s rent, notifying him that he was in default for failing to pay the cost of living increase, Mr. Johnston continued to send, and Mr. Brown continued to accept, payments without the cost of living adjustment until January of 2001.

[¶ 31] The district court found that Mr. Johnston did not violate the terms of the lease in any material fashion and that Mr. Brown failed to comply with the default provisions requiring notice and an opportunity to cure. Having reviewed all of the properly admitted evidence contained in the record, we hold that the trial court’s finding is not clearly erroneous. Although the lease required Mr. Johnston to pay the additional amount on or before April 1, 2000, Mr. Brown accepted the previous amount in payment of the rent for the months of April, May, June, July, August and September of 2000. After notifying Mr. Johnston that the rental payments for the previous six months were deficient and that he was in default, Mr. Brown continued to accept payments without the cost of living increase for another four months. It was not until January 2001, nine months later, that Mr. Brown refused payment and again notified Mr. Johnston the payments were deficient and that he was in default.

[¶32] Mr. Johnston failed to pay Mr. Brown $40 per month from April 2000 until January 2001. This amounts to a total deficiency of $360. After receiving the January 2001 notice of default, Mr. Johnston paid that amount in full within 30 days. The deficiency was cured before Mr. Brown filed his complaint in this matter. Forfeiture is harsh and equity disfavors forfeiture for a delayed payment of rent. 49 Am.Jur.2d Landlord and Tenant § 290; see also Angus Hunt Ranch, Inc. v. REB, Inc., 577 P.2d 645, 650 (Wyo.1978). In Baker v. Jones, 69 Wyo. 314, 240 P.2d 1165 (1952), this Court said:

It is now well established in law and in equity that forfeitures are not favored. Before one can declare a forfeiture it must appear that he has a clear right and then too he himself must be free from blame in the premises. Every reasonable presumption is against a forfeiture and every in-tendment and presumption is against a person seeking to enforce it. 17 C.J.S., Contracts, 407, page 896. Provisions for forfeiture may be waived and the courts are quick to take advantage of circumstances indicating such an intention. 17 C.J.S. 897, 409.

Id. at 1171. Under the present circumstances, Mr. Johnston’s late payment of $360 four months after the first notice of default does not justify forfeiture of a long-term lease. Giving every reasonable presumption against forfeiture and the party seeking forfeiture, we are not left with the definite and firm conviction that the district court was mistaken in its finding. A lessor waives his cause for forfeiture if he condones or assents to previous defaults and has not given notice of his intention to insist on strict compliance in the future. Angus Hunt Ranch, Inc., 577 P.2d at 650. By accepting rental payments that did not include the cost of living increase from April 2000 until September 2000, Mr. Brown waived his right to claim Mr. Johnston was in default. Although Mr. Brown sent Mr. Johnston a certified letter in September 2000, notifying Mr. Johnston that he was in default for failure to pay cost of living-increases, he continued to accept Mr. Johnston’s errant rental payments for the months of October, November and December of 2000. We hold the record adequately supports the district court’s conclusion that Mr. Johnston’s failure to pay the cost of living adjustment was not a material violation of the lease under the circumstances and that Mr. Brown by his conduct waived any breach.

3. Property taxes

[¶ 33] Mr. Brown argues the trial court erred in finding Mr. Johnston did not materially breach the lease agreement by failing to timely pay property taxes for the year 2000. While Mr. Johnston failed to pay the taxes by December 31, 2000, as Mr. Brown requested, he did deliver Mr. Brown a check for the property taxes on January 2, 2001. This check was mistakenly issued to the Teton County Treasurer. Consequently, on January 3, 2001, Mr. Brown returned Mr. Johnston’s check, and requested that he make the check out to him. He notified Mr. Johnston that he was in default for failure to pay the taxes on time, and gave him 30 days in which to cure the default. At trial, Mr. Brown testified that Mr. Johnston issued a check to him for the property taxes within the 30 day period; therefore, Mr. Johnston properly cured any default of the lease agreement for failure to pay taxes. We hold the district court’s finding on this issue was not clearly erroneous.

Award of Nominal Damages

[¶ 34] Mr. Brown also claims error in the award of nominal damages to Mr. Johnston on his counterclaim. The district court found that Mr. Browns act of erecting or placing concrete barricades on the leased premises was a breach of the covenant of quiet enjoyment of the leased premises, and awarded Mr. Johnston $250.00 for nominal damages. As with the other claims, we hold the district courts award of nominal damages to Mr. Johnston was not clearly erroneous.

[¶ 35] The lease modification agreement provided that: Tenants are entitled to the quiet enjoyment of their own dwelling, and their neighbors are entitled to the same. Mr. Johnston was entitled to rely upon the covenant of quiet enjoyment to protect him from any interference with his right of possession granted by the lease. Diamond Cattle Co. v. Clark, 52 Wyo. 265, 74 P.2d 857, 866 (1937). Mr. Johnstons right of possession was for use of the leased premises for a restaurant and liquor store, and use of a shared parking area. The evidence shows that Mr. Brown placed concrete barriers in the leased area for the purpose of defining the northern boundary of the easement, and later stored the barriers in the shared parking lot. It is clear that Mr. Browns actions interfered with Mr. Johnstons business. The barriers made it difficult for delivery trucks to make deliveries to the restaurant and took up available parking used by the restaurants patrons. The district courts finding that by placing concrete barriers on the leased premises Mr. Brown breached the covenant of quiet enjoyment was not clearly erroneous.

[¶ 36] At trial, although Mr. Johnston did not prove that Mr. Browns breach caused any amount of loss or damage, the district court awarded Mr. Johnston nominal damages in the amount of $250. Nominal damages can be awarded where a cause of action for a legal wrong is established even though there is no proof of actual damages. State ex rel. Willis v. Larson, 539 P.2d 352, 355 (Wyo.1975); see also, 25 C.J.S. Damages 19 (2002). Nominal damages are a mere token signifying that a claimants rights where technically invaded even though he could not prove any loss or damage. Griffith v. State of Colorado, Division of Youth Services, 17 F.3d 1323, 1327 (10th Cir.1994). Accordingly, we hold that the district court did not err in awarding nominal damages to Mr. Johnston in the token amount of $250 for Mr. Browns breach of the covenant of quiet enjoyment.

[¶ 37] The judgment of the district court is affirmed.

      . The term "road” is used loosely in the context of the portion of Horse Creek Road that runs along the Lineberry property. The site in question is a large gravel area having the appearance of a parking area rather than a road. However, neighboring landowners to the east use it to access their property to the east.

      . The easement owner ultimately sued Mr. Brown. He alleged in his complaint that the speed dip constructed by Mr. Brown was too deep for his car to safely traverse, and he was attempting to move the railroad tie so that he could drive through the parking area to avoid the dip when he was injured.

      . § 34-l-121(a) provides in pertinent part: "(a) Each and every deed, mortgage, instrument or conveyance touching any interest in lands, made and recorded, according to the provisions of this chapter, shall be notice to and take precedence of any subsequent purchaser or purchasers from the time of the delivery of any instrument at the office of the register of deeds (county clerk), for record."


author: VOIGT, Justice.

text:
    2004 WY 18
    In the Interest of KRA, minor child: CAA, n/k/a CAF, Appellant (Respondent), v. ZWA, Appellee (Respondent).
    No. C-03-6.
    Supreme Court of Wyoming.
    March 4, 2004.

      Representing Appellant: Michele J. Neves, Casper, Wyoming.
    Representing Appellee: James A. Hardee, Douglas, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] KRA was born to ZWA (Father) and CAF (Mother), an unmarried couple who separated shortly thereafter. This case began as an action to establish paternity. Paternity was established and shared custody, alternating weekly, was ordered. Mother appeals, claiming that the district court’s findings of fact are insufficient and unsupported by the record, and that shared custody is not in the child’s best interests. We will affirm.

ISSUES

[¶ 2] Mother presents the following issues:

I. Whether the trial court failed to make specific findings of fact and conclusions of law pursuant to Rule 52 of the Wyoming Rules of Civil Procedure.
II. Whether the trial court’s decision was contrary to the evidence.
III. Whether the trial court’s decision was in the best interests of the minor child.

Father raises two issues:

1. Is the January 31, 2003 order of the district court, which continues the temporary order issued March 4, 2002, an appealable order as required by Wyoming Appellate Rules 1.04 and defined by Wyoming Appellate Rule 1.05?
2. If the order is appealable, did the trial court abuse its discretion in ordering continued shared custody?

FACTS

[¶3] Mother and Father met while he was finishing his senior year of high school. They dated for a time and Father then moved into the trailer where Mother and her daughter from a previous marriage lived. Shortly thereafter, Father left for the National Guard and Mother moved out of the trailer into her parents’ home. Mother then contacted Father and informed him that she was pregnant. Upon returning from his service with the National Guard, Father moved in with Mother and her parents. After living with Mother’s parents for a time, the couple, along with Mother’s daughter, moved to Wright, where ERA was born. Three months later, Mother left Wright with the two children and returned to her parents’ home in Douglas. After a failed attempt at reconciliation, Mother and Father went their separate ways. Father purchased a home in Douglas and obtained employment as a “hot oiler” in an oil field, and Mother married and returned to Wright, where her new husband worked and had a home.

[¶ 4] In August of 2001, the Department of Family Services filed a paternity action. After genetic testing confirmed Father’s paternity, he filed a Petition to Establish Custody and Visitation. On March 4, 2002, a custody and support hearing was held. Because Mother appeared pro se, the district court stayed the proceedings to allow Mother to obtain counsel and entered a temporary order for custody and support. The temporary order directed Father to pay $137.50 per month in child support, and prescribed shared custody in alternating weeks.

[¶ 5] This order remained in effect until December 12, 2002, when the parties appeared again. Both parties argued that they should be awarded primary custody. Mother contended that as a stay-at-home-mom she was better suited to care for ERA than Father, whose employment required him to leave ERA with a babysitter. Mother also argued that the shared custody arrangement is difficult for ERA because ERA and Mother’s other daughter have bonded and the children are upset when they are apart. Finally, Mother expressed concern that Father did not properly attend to ERA’S medical needs and that he returned her from visits dirty, hungry, thirsty, with smelly hair and dirty fingernails, and without proper clothing for cold weather.

[¶ 6] Father urged the district court to award him primary custody, claiming that if Mother were awarded sole custody, she would attempt to deny him visitation. Father claimed that Mother had encouraged her other daughter to disparage her father, and that Mother had influenced her other daughter to become estranged from her father. Father also stated that he worried Mother would tell ERA things that were not true, causing her to be “confused and emotionally and mentally unstable.... ” Father also indicated that Mother had not finished high school, and expressed concern that she would not properly stress the importance of education.

[¶ 7] At the end of the hearing, the district court requested that the parties submit findings of fact and conclusions of law, which they did. On January 31, 2003, the district court issued its Order for Custody and Visitation with Findings of Fact and Conclusions of Law. The order briefly outlined the relevant facts, stated the parties’ respective strengths and weaknesses with regard to parenting, and then concluded:

1. Neither party is clearly more or less capable of providing for [KRA] than the other. [Father] likely would provide a better atmosphere for [KRA] to have a relationship with both her parents, but his work schedule would require him to rely significantly on babysitters. [Mother] is able to provide personal care for [KRA], and [KRA] would live with her sister in [Mother’s] custody. However, [Mother] may deprive her daughter of a complete, emotionally secure relationship with her father.
2. Each party should complete a co-parenting class within sixty (60) days of the date of this decision.
3. [KRA] has been able to maintain a good relationship with both of her parents and her sister under the existing shared custody arrangement. The shared custody arrangement meets [KRA’s] needs better than sole custody with either parent would.
4. It is in [KRA’s] best interest that the current Temporary Order establishing joint/shared custody be continued until three months prior to [KRA’s] eligibility to enter Kindergarten in the school district of either parent. The time for an exchange of custody should be modified to 3:00 p.m. on Sunday.
5. The existing child support computations are accurate and should be continued.

Mother appeals from this order.

STANDARD OF REVIEW

We have previously reiterated the well recognized standard of review for custody determinations:

“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 custody 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.’ Fink [v. Fink], 685 P.2d [34,] 36 [ (Wyo.1984) ].”

Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998).... Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Pace v. Pace, 2001 WY 43, ¶ 9, 22 P.3d 861, ¶ 9 (2001); Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

“Our review entails evaluating the sufficiency of the evidence to support the trial court’s decision, and we afford to the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. We cannot sustain findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence. Similarly, an abuse of discretion is present when a material factor deserving significant weight is ignored. RDS v. GEMN, 9 P.3d 984, 986 (Wyo.2000).”

Pace, at ¶ 10.

Produit v. Produit, 2001 WY 123, ¶ 9, 35 P.3d 1240, 1242-43 (Wyo.2001).

DISCUSSION

Is This An Appealable Order?

[¶ 8] Initially, we must address Father’s contention that the district court’s order is not an appealable order as defined in W.R.A.P. 1.05. Father takes issue with the following language of the order: “that the Temporary Order for custody entered in this case in March, 2002, is adopted and continued until three (3) months before [KRA] is eligible to begin Kindergarten in the school district of either pai-ent, provided, however, that custody exchanges shall occur at 3:00 p.m. on Sunday.” He contends that this order merely continues the temporary order and sets a determinable time for a final order to be entered.

[¶ 9] The pertinent language of W.R.A.P. 1.05 reads: “An appealable order is: (a) An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment....” We applied this section in Steele v. Neeman, 6 P.3d 649, 653 (Wyo.2000). There, the parties were attempting to modify a divorce decree. Because the mother had moved with the child to New York, subject matter jurisdiction was a concern. Id. at 652. Prior to a hearing on'the merits, the district court issued an order establishing subject matter jurisdiction. Id. After the hearing on the merits, the mother appealed the court’s prior order establishing jurisdiction. Id. The father claimed that the appeal was untimely, asserting that the order was an appealable order under W.R.A.P. 1.05, and since mother filed her notice outside the allowable thirty-day time period, her appeal should be dismissed. Steele, 6 P.3d at 653. We concluded that the order was not appealable under W.R.A.P. 1.05. Steele, 6 P.3d at 653. We stated:

The resolution of the jurisdictional issue by the district court did not determine the merits of the controversy. This is self-evident from the fact that the very order cited by Father also sets the merits of the controversy — his petition to modify visitation- — for hearing. Since that order did not determine the merits of the controversy and resolve all outstanding issues, it was not a final, appealable order under W.R.A.P. 1.05(a).

Id.

[¶ 10] From the language of W.R.A.P. 1.05 and the holding of Steele, we glean three necessary characteristics of an appealable order. It must affect a substantial right, determine the merits of the controversy, and resolve all outstanding issues. See also Public Service Commission v. Lower Valley Power and Light, Inc., 608 P.2d 660, 661 (Wyo.1980) (“a judgment or order which determines the merits of the controversy and leaves nothing for future consideration is final and appealable, and it is not appealable unless it does those things.”).

[¶ 11] Clearly, the present order affects a substantial right as we have long recognized parents’ fundamental right to “care for, educate, and associate with their children.” Matter of MLM, 682 P.2d 982, 990 (Wyo.1984). Likewise, the order determines the merits of the controversy. In this ease, the controversy was over the issue of child support, custody and visitation. The parties presented evidence of their abilities and limitations with respect to these issues, and the district court’s order made specific findings with regard to these issues. The order adequately addressed the merits of the controversy.

[¶ 12] The final requirement is that an appealable order must resolve all outstanding issues. Father maintains that the “order is not dispositive of custody but merely maintains the status quo until such time as a proper and fully considered custody determination can be made.” In domestic cases involving children, a district court can only resolve issues as they exist at the time it hears the case. Because of the dynamic nature of family relationships, district courts have continuing jurisdiction to address new issues as they may arise. Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2003), provides:

A court having jurisdiction may modify an order concerning the care, custody and visitation of the children if there is a showing by either parent of a material change in circumstances since the entry of the order in question and that the modification would be in the best interests of the children ....

The present order resolved the issue of custody when it ordered “that the Temporary Order for custody entered in this case in March, 2002, is adopted and continued until (3) months before [KRA] is eligible to begin Kindergarten.... ” While it remains uncertain what visitation and custody arrangement will be in KRA’s best interests when she begins school, the order clearly states that currently “[t]he shared custody arrangement meets [KRA] ’s needs better than sole custody with either parent would.” The order addressed child support and custody and no issues remain unresolved.

[¶ 13] Since the order affects a substantial right, determines the merits of the controversy, and resolves all outstanding issues, we find that it is an appealable order.

Mother’s Arguments

[¶ 14] Mother’s appeal is based on three arguments. She contends that the district court failed to make findings of fact and conclusions of law as required by W.R.C.P. 52, that the district court’s decision was contrary to the evidence, and that the decision was not in the child’s best interests.

[¶ 15] Prior to the introduction of any evidence, Mother requested, pursuant to W.R.C.P. 52, that the district court make specific findings of fact and conclusions of law. The district court’s final order, entitled “Order for Custody and Visitation with Findings of Fact and Conclusions of Law,” clearly complies with the requirements of W.R.C.P. 52. In this order, the district court adequately outlines its findings and separately states its conclusions. We find Mother’s argument on this issue to be without merit.

[¶ 16] Mother next argues that the district court’s decision was contrary to the evidence. Mother’s appellate brief lists each of the district court’s findings and conclusions individually, and then states whether she accepts or disputes them. With every disputed finding, she presents an argument why the finding is inaccurate, generally focusing only on evidence that supports her position and ignoring any contrary evidence. To argue successfully that the decision was contrary to the evidence, Mother must demonstrate that a material factor deserving significant weight was ignored or that a finding was contrary to the evidence or against the great weight of the evidence. In re MS, 9 P.3d 984, 986 (Wyo.2000) (quoting Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998)). This can be a difficult task, considering we “ ‘afford to the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party.’ ” In re MS, 9 P.3d at 986 (quoting Reavis, 955 P.2d at 431). We have stated that “[t]he trial judge is in the best position to assess the credibility of witnesses and weigh their testimony, and, thus, this Court accords considerable deference to the trial judge’s findings.” Clark v. Clark, 980 P.2d 821, 823 (Wyo.1999). While the district court’s final order may not have characterized every fact as Mother would have liked, or articulated every one of Mother’s strengths and Father’s weaknesses, the record indicates that both Mother and Father are capable of providing KRA adequate care and support, and that the shared custody arrangement is working well and allows both parents adequate parenting time to develop a relationship with KRA. We find nothing in the record demonstrating that the district court’s decision was contrary to the evidence.

[¶ 17] Finally, Mother argues that the district court’s decision was not in KRA’s best interests. Mother contends that the weekly alternating shared custody arrangement, where the parents are living seventy miles apart, and which results in KRA being with her step-sister only every other week, is not in KRA’s best interests.

[¶ 18] Fashioning a custody arrangement that will best serve the child’s best interests is within the discretion of the trier of fact. Produit, 2001 WY 123, ¶ 9, 35 P.3d at 1242-43 (quoting Reavis, 955 P.2d at 431). We have stated:

The best interests of the children is the primary'consideration when parental custody matters are being determined. Fanning v. Fanning, 717 P.2d 346, 352 (Wyo.1986). “[T]he ‘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.’ ” Love v. Love, 851 P.2d 1283, 1287 (Wyo.1993) (quoting Leitner v. Lonabaugh, 402 P.2d 713, 720 (Wyo.1965)).

Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo.1993). The district court must order a custody arrangement that will most adequately serve the child’s best interests. While there are instances where shared custody may be appropriate, we have consistently held that we do not favor such an arrangement. Produit, 2001 WY 123, ¶ 15, 35 P.3d at 1244; Reavis, 955 P.2d at 432; Martin v. Martin, 798 P.2d 321, 322 (Wyo.1990).

There are several reasons for our reluctance to embrace the concept, but first and foremost is the recognition that stability in a child’s environment is of utmost importance to the child’s well-being, and divided custody places the stability of a child’s environment at risk. Whether termed “divided,” “shared,” or “joint” physical custody, “a measure of instability is inherent” in the arrangement. Gurney [v. Gurney], 899 P.2d [52] at 55 [ (Wyo.1995) ]. We do not- dispute that there may be cases where joint or shared physical custody may approximate the former family relationships more closely than other custodial arrangements, or for other good reason may be in the best interests of the children. However, divided physical custody may not be indiscriminately substituted for an award of sole custody to one parent in order to appease one party.

Reavis, 955 P.2d at 432. In Reavis, the district court ordered shared custody stating that this arrangement would promote “ ‘an ongoing, strong and healthy parent to child relationship between both mother and father.’ ” Id. at 432. We reversed, finding nothing in the record to support that notion. Id.

[¶ 19] Here, unlike Reavis, the record demonstrates good reason that shared custody is in KRA’s best interests, and that shared custody most closely approximates the former family relationship. At trial, .Father presented evidence that if Mother was given primary custody, she would attempt to alienate KRA from him.

Q (By [Father’s attorney]) [Father], when you were cohabitating with [Mother] and [her other daughter], did you observe [Mother] and [her other daughter] discussing [her other daughter’s] father?
A I know [Mother] has not, really, ever talked directly to [her other daughter] about her father, but she would talk to me, call him names and things like that, and [her other daughter] would be right there. I know that she has taught’ [her other daughter] to call her dad spic, and has taught her to call her dad fucker.
I know [her other daughter] has told her dad that he is not her dad.
Q [Father], do you have any concerns about what might happen with your daughter if she is left in that environment?
A That is a lot of my concern. I feel that [KRA] if she is with [Mother] will be told certain things that aren’t — that are not [true], be told lies, that she will grow up confused and emotionally and mentally unstable through a lot of them, reactions, and/or, things that [Mother] may tell her.
I feel that just the whole emotional and mental stability of everyone on, it seems like, on her side of the family, doing a lot of one week be best friends, next week be worst enemies. I feel that that’s unstable for [KRA]. She’s — I am just, I guess worried that she will be taught things, and told things that are not the truth and that it could truly hurt her emotionally later on.

The district court found that “[Mother] has actively encouraged her other daughter ... to disparage and otherwise denigrate and be estranged from her father,” and that “[Mother’s] attempt to unnecessarily criticize [Father] ... indicates her inability to understand the importance of [KRA’s] relationship with her father....” The district court con-eluded that “[Mother] is able to provide personal care for [KRA], and [KRA] would live with her sister in [Mother’s] custody. However, [Mother] may deprive her daughter of a complete, emotionally secure relationship with her father.” We must afford considerable deference to the district court’s findings as “[t]he trial judge is in the best position to assess the credibility of the witnesses and weigh their testimony,” Produit, 2001 WY 123, ¶ 22, 35 P.3d at 1246.

[¶ 20] We also note that at the time of the hearing, the parties had been exercising shared custody for over nine months and the district court found that “[t]he current shared custody arrangement has not caused difficulties for [KRA].” At the time of the writing of this opinion, KRA will have been in the shared custody arrangement for two years. We have recognized that stability in a child’s environment is of utmost importance to the child’s well-being. Gurney v. Gurney, 899 P.2d 52, 55 (Wyo.1995). To change the custody arrangement that KRA has known for two years would jeopardize that stability and be contrary to her best interests. We will affirm the district court’s order of shared custody.

CONCLUSION

[¶ 21] Contrary to Father’s assertion, we conclude that the order that is the subject of this appeal is an appealable order as defined in W.R.A.P. 1.05 because it affects a substantial right, determines the merits of the controversy, and resolves all outstanding issues. We also conclude that the district court’s findings of fact and conclusions of law were sufficient to meet the requirements of W.R.C.P. 52, that its decision was not contrary to the evidence, and that under the facts of this particular case, shared custody selves the child’s best interests. The order of the district court is affirmed.

      . W.R.C.P. 52 reads, in pertinent part:
      (a) General and special findings by court.— Upon the trial of questions of fact by the court, or with an advisory jury, it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant, unless 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, in which case the court shall state in writing its special findings of fact separately from its conclusions of law; provided, that without such request the court may make such special findings of fact and conclusions of law as it deems proper and if the same are preserved in the record either by stenographic report or by the court’s written memorandum, the same may be considered on appeal. Requests for findings are not necessary for purposes of review.
      (Emphasis added.)


text:
    2004 WY 20
    Michael W. SARR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-17.
    Supreme Court of Wyoming.
    March 10, 2004.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, JJ; and KALOKATHIS, D.J.
   KITE, Justice.

[¶ 1] Following publication of this Court’s original opinion in Sarr v. State, 2003 WY 42, 65 P.3d 711 (Wyo.2003), Appellant Michael Sarr filed a Petition for Rehearing, asserting that the Court erred by remanding for a new trial on Count III. He claims that because his conviction on that count was reversed for insufficiency of the evidence, allowing a second trial on that count would violate the constitutional prohibitions against double jeopardy. We granted the petition for rehearing. However, we decline to alter our previous holding that Mr. Sarr may be retried on Count III as clarified below.

ISSUES

[¶2] The Appellant states the issue for rehearing as follows:

Whether Wyoming and United States Supreme Court law provide that jeopardy attaches when a conviction is overturned due to insufficiency of the evidence[?]

[¶ 3] The State phrases the rehearing issue as:

Does retrial of an appellant after a reversal based upon the incorrect receipt of evidence place him twice in jeopardy under the Wyoming and United States constitutions?

FACTS

[¶ 4] The underlying facts of this case are set out in the original opinion and will not, therefore, be recited here. San', ¶¶3-11. Upon rehearing, the only relevant facts pertain to the aggravated assault and battery charge set out in Count III. In that count, the state alleged that on May 6, 2000, Mr. Sarr beat the victim, Ann Wing, with a “coup stick” across her back resulting in serious bodily injury. San", ¶ 6. Serious bodily injury means “bodily injury which creates a substantial risk of death or which causes miscarriage, severe disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Wyo. Stat. Ann. § 6-l-104(a)(x) (LexisNexis 2003).

[¶ 5] Ms. Wing died in an unrelated accident prior to the trial. Sarr, ¶ 7. In lieu of Ms. Wing’s live testimony, the state presented a tape-recorded hearsay statement in which she described the beatings she received at Mr. Sarr’s hands. Id. With regard to Count III, she stated the beating with the “coup stick” was so harsh that she required surgery and “prior to surgery, an MRI was taken of her back, and it showed that her vertebrae had been chipped and splintered by the coup stick.” Id. at ¶ 16. In its original opinion, this Court held that portion of the victim’s hearsay statement should not have been admitted under Wyoming Rule of Evidence 804(b)(6) because the state failed to demonstrate those statements were more probative than any other evidence obtainable by reasonable efforts, noting that “medical records or expert testimony would be more probative than Ms. Wing’s recollection as to her back injuries.” Sarr, ¶ 16. Without that proof, we held “proof of serious bodily injury is wanting as to Count III” and reversed Mr. Sarr’s conviction on that count. Id. at ¶ 38.

DISCUSSION

[¶ 6] Mr. Sarr argues that there was insufficient evidence to prove the “serious bodily injury” element of Count III. He concludes, therefore, that the double jeopardy protections of the United States and Wyoming constitutions preclude a second trial on Count III.

[¶ 7] Defendants are protected against twice being put in jeopardy for the same offense by the Fifth Amendment to the United States Constitution and article I, § 11 of the Wyoming Constitution. Longstreth v. State, 890 P.2d 551, 553 (Wyo.1995). In Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the United States Supreme Court held a district court’s determination that there was insufficient evidence to support an element of the charged offense amounts to a judgment of acquittal. Under those circumstances, “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Id.

[¶ 8] A reversal on the basis of a trial error is, however, different than a reversal based solely upon the insufficiency of the trial evidence. Id. at 14-16, 98 S.Ct. 2141; Lockhart v. Nelson, 488 U.S. 33, 39-40, 109 S.Ct. 285, 102 L.Ed.2d 265, (1988). Count III was reversed because the trial court erroneously admitted the victim’s hearsay testimony regarding medical conclusions. The double jeopardy clause does not prohibit a retrial when a review of all of the evidence presented at trial, including the improperly admitted evidence, is sufficient to sustain a conviction. Lockhart, 488 U.S. at 40, 109 S.Ct. 285.

[¶ 9] Mr. Sarr argues that this Court decided, in the original opinion, that, even taking into account the inadmissible hearsay evidence, there was insufficient evidence to sustain a conviction on Count III. He contends that our decision, therefore, amounts to a judgment of acquittal, foreclosing a second trial on the same count. Mr. Sarr relies on Longstreth v. State, 832 P.2d 560 (Wyo.1992) and Longstreth, 890 P.2d at 553 to support his position.

[¶ 10] It is true that we stated in the original opinion that evidence such as medical reports and physician testimony would have been more probative on the “serious bodily injury” element of the charge than the victim’s hearsay testimony about her injuries. Sarr, ¶ 16. We also stated that “[bjeeause we have determined that Ms. Wing’s statement regarding her spinal injury and MRI results was not admissible under W.R.E. 804(b)(6), proof of serious bodily injury was wanting as to Count III.” Id. at ¶ 38. We did not, however, find that, even with the improperly admitted testimony, the evidence was insufficient to support a conviction.

[¶ 11] Taking into account all of the evidence presented at trial, including the erroneously admitted evidence, we cannot say that the evidence was legally insufficient to support a conviction. Indeed, as recognized by the United States Supreme Court in the Burks case, appellate reversal on grounds of insufficient evidence is confined to cases where the prosecution’s failure to prove the elements of a charged offense is clear. Burks, 437 U.S. at 17, 98 S.Ct. 2141.

[¶ 12] The Longstreth decisions do not aid Mr. Sarr’s position. In the first Long-streth case, this Court held that the evidence offered to prove the unlawful entry element of the burglary charge was insufficient. Longstreth, 832 P.2d at 564. The only evidence pertaining to that element was the hearsay statement of a police officer which was received into evidence at trial “not for the truth of the matter asserted but only for ‘the officer’s understanding.’ ” Id. at 562. The effect of the limited admission was “that no evidence was offered to prove the unlawful entry element.” Id. at 563 (emphasis added). Consequently, the Court’s reversal of Longstreth’s burglary conviction was based upon a clear insufficiency of the evidence, and the prosecution was prohibited from retrying him on that charge. Longstreth, 890 P.2d at 552-54. The Longstreth cases are, therefore, distinguishable because, in the case at bar, there was evidence (albeit inadmissible evidence) presented to establish the serious bodily injury element of the crime. Under these circumstances, Mr. Sarr will not be subjected to double jeopardy by a second trial on Count III.

CONCLUSION

[¶ 13] We affirm our prior decision and Count III of the judgment of conviction is reversed and remanded.