author: DURRANT, Justice:

text:
    2000 UT 57
    COUNTY BOARD OF EQUALIZATION OF WASATCH COUNTY, State of Utah, Petitioner, v. STICHTING MAYFLOWER RECREATIONAL FONDS, Stichting Mayflower Mountain Fonds, and Utah State Tax Commission, Respondents.
    No. 980013.
    Supreme Court of Utah.
    July 7, 2000.

      Daniel H. Matthews, Joseph T. Dunbeck, Jr., Heber City, for petitioner.
    Jan Graham, Att'y Gen., Timothy A. Bodily, John C. McCarrey, Kelly W. Wright, Asst. Att'ys Gen., E. Craig Smay, Salt Lake City, for respondents.
   DURRANT, Justice:

{1 We granted petitions for a writ of certiorari to review the Utah Court of Appeals' decision in County Board of Equalization of Wasatch County v. Stichting Mayflower Recreational Fonds, 943 P.2d 238 (Utah Ct.App.1997). In that case, the court of appeals affirmed a ruling by the Utah State Tax Commission (Commission) that three parcels of real property owned by Stichting Mayflower Recreational Fonds (Mayflower) qualified for preferential greenbelt tax treatment under the Farmland Assessment Act (FAA) for the 1992 tax year. See id. at 247. For the 1998 tax year, however, the court of appeals partially reversed the Commission's ruling and held that only two of Mayflower's three parcels qualified for greenbelt status. We affirm in part and reverse in part.

BACKGROUND

1 2 Mayflower owns several parcels of land in Wasatch County, Utah. The instant case concerns only three of these parcels (collectively referred to as the Mayflower property or parcels): (1) the North parcel, (2) the Density Determination parcel, and (8) the South Mountain parcel." The North parcel lies east of U.S. 40 and slightly northwest of the Jordanelle reservoir. It contains 657.17 acres. Though nearby, the North parcel does not border either of the other two parcel. The Density Determination parcel lies south of the North parcel and extends west from Jordanelle. This parcel contains 1268.28 acres. U.S. 40 separates the northeastern portion from the bulk of the Density Determination parcel. The southwestern edge of the Density Determination parcel borders a northeastern edge of the South Mountain parcel. The South Mountain parcel extends west and southwest of this borderline. It contains 1495.11 acres.

13 In the early 1980s, Mayflower began leasing these three parcels to Luke Gillmore (Gillmore), an officer of Gillmore Livestock Company. Cillmore grazes sheep and cattle on the Mayflower property and 1560 acres of his own adjoining land. Based on Cillmore's agricultural use of the land, Wasatch County (the County) granted greenbelt status to the Mayflower property beginning in 1985.

T4 In 1992, the County determined that the Mayflower property no longer merited greenbelt status. Thus, the County assessed the parcels at their full fair market value for the 1998 tax year and imposed a rollback tax for 1988 to 1992. Mayflower appealed this determination to the Wasatch County Board of Equalization (the Board). The Board sustained the County's decision despite the hearing examiner's recommendation that sufficient grazing occurred on the Mayflower property to justify continued greenbelt status. Mayflower then appealed to the Commission.

15 At the Commission hearing, Gillmore testified concerning his use of the Mayflower property. Gillmore stated that he has produced livestock all his life and that his family has been in the livestock business since the 1800s. Gillmore testified that each year he grazes roughly 1200 to 1500 sheep and between 160 to 170 head of cattle on his own and Mayflower's property. Each summer, Gillmore transports the animals to the properties and then drops them off at various spots. From these drop-off spots, the animals can graze the rest of the properties because the Mayflower and Gillmore properties are essentially unfenced. Except for U.S. 40, no physical barriers prevent the livestock from grazing the whole area. Gill-more testified that the livestock did, in fact, graze the "entire length" of the combined properties. The Mayflower property, however, is especially important for Cillmore's grazing operation because it contains "a lot more water" than does the illmore land. Without the Mayflower property, Gillmore testified that he could not provide his animals sufficient water.

16 For several years in the mid to late 1980s, Gillmore set up a sheep camp each summer near the western edge of the South Mountain parcel. Gillmore would maintain this sheep camp for the entire summer, thereby grazing the land for a longer period of time than he had theretofore done. Accordingly, Gillmore paid Mayflower additional rent for this extended grazing of the South Mountain parcel. Sometime in the late 1980s, Gillmore stopped this practice due to the encroachment of civilization. With the rain. growth of nearby developments in Park City and Deer Valley, more and more domestic dogs had appeared in the area. Because the dogs posed a serious threat to the sheep, Gillmore stopped taking the whole herd to the South Mountain parcel. As a result, Gillmore also stopped paying the extra rent for his extended use of the South Mountain parcel. However, he continued to pay the original base rent amount, which still entitled him to graze the South Mountain parcel. Although Gillmore no longer set up a sheep camp on the South Mountain property, "different bunches" of sheep periodically still wandered onto the parcel and grazed. Some cattle did likewise, although to a much lesser degree because of the parcel's steeper ter-The livestock would graze South Mountain in this manner until Gillmore learned they were there and then he would return them to the herd. Gillmore could not estimate the number of livestock that continued to graze the South Mountain parcel in this manner.

T7 Based on this and other evidence, the Commission reversed the Board's decision. The Commission concluded that the Mayflower property sufficiently complied with FAA requirements, thereby warranting greenbelt status for the 1992 and 19983 tax years. Accordingly, the Commission granted the property greenbelt status and lifted the rollback tax the County had imposed. The Board petitioned the Commission to reconsider its order but was denied. The Board then petitioned this court to review the Commission's decision. We transferred the case to the court of appeals pursuant to Utah Code Ann. § 78-2-2(4) (1996). The court of appeals affirmed the Commission's ruling as to the 1992 tax year. See Stichting Mayflower, 943 P.2d 238, 247 (Utah Ct.App.1997). As for the Commission's decision concerning the 1998 tax year, the court of appeals partially reversed the Commission by holding that the South Mountain pareel should be assessed separately and as a separate parcel it did not qualify for greenbelt treatment. See id. The court of appeals also held that there were no grounds for imposing a rollback tax. See id. at n. 4. Both Mayflower and the Board filed petitions for writ of certiorari to review the court of appeals' decision. We granted those petitions.

T8 The parties have raised numerous issues for review, which center on two fundamental questions: (1) whether the South Mountain parcel should be assessed by itself or in conjunction with the other parcels, and (2) whether the appropriate unit to be assessed qualified for greenbelt status for the 1992 and 1998 tax years.

STANDARD OF REVIEW

19 On certiorari, we review the court of appeals' decision for correctness. The correctness of the court of appeals' decision depends on whether it accurately reviewed the Commission's decision based on the appropriate standard of review. See Newspaper Agency Corp. v. Auditing Div., 938 P.2d 266, 267-68 (Utah 1997). In this case, the Utah Code prescribes the appropriate standard for reviewing a decision by the Commission. The Commission's legal conclusions are reviewed under a correction of error standard. See Utah Code Ann. § 59-1-610(1)(b) (1996). The Commission's written findings of fact are reviewed under a substantial evidence standard. See id. § 59-1-610(1)(a). This means the reviewing court-the court of appeals in this case-should uphold the Commission's factual findings if the findings are supported by substantial evidence. See Schmidt v. Utah State Tax Comm'n, 1999 UT 48, T7, 980 P.2d 690. " 'Substantial evidence' is that quantum and quality of relevant evidence which is adequate to convinee a reasonable mind to support a conclusion." Id. (citations omitted).

ANALYSIS

10 The FAA provides an exception to the general rule that land is assessed for property tax purposes based on its "highest and best" use. See Board of Equalization of Salt Lake County v. Utah State Tax Comm'n ex rel. Judd, $46 P.2d 1292, 1295 (Utah 1998). Under the FAA, qualifying agricultural property is taxed according to its agricultural value, whether or not this is the land's "highest and best" use. The legislature enacted the FAA because it recognized that urban growth was encroaching on rural areas and that if farmland was taxed at market value, farmers whose properties were located near expanding urban areas would find it difficult to continue to devote their property to low-profit farming operations. Thus, the purpose of the FAA was to benefit those individuals and entities that continued to use land for agricultural purposes, particularly when the property was located near urban development.

Id. at 1297.

I. DETERMINING THE APPROPRIATE PROPERTY UNIT TO BE ASSESSED

€ 11 To properly apply a property tax statute like the FAA, one must first determine the unit of property to be assessed. In the instant case, the Commission determined that the Mayflower property should be assessed as a whole, not parcel by parcel. The court of appeals concluded that the South Mountain parcel should be assessed separately, at least for the 1998 tax year. See Stichting Moyflower, 948 P.2d at 246 (Utah Ct.App.1997). The court of appeals gave several reasons for this conclusion. First, the court determined that the South Mountain parcel, "for all practical purposes," was not contiguous to the other two parcels. See id. Second, the court found that Gillmore did not pay rent for the South Mountain parcel. See id. Third, the court determined that the South Mountain pareel was "not grazed like the remaining parcels." Id. Finally, the court concluded that the South Mountain parcel was not needed to maintain or support grazing on the other two parcels. See id.

112 The size of the property unit to be assessed for property tax purposes is primarily a factual determination. Therefore, the court of appeals was obligated to uphold the Commission's decision to assess the Mayflower property as a whole unless the court found that the Commission's decision was not supported by substantial evidence. Only then could the court of appeals supplant the Commission's factual finding with its own. We conclude that the court of appeals failed to correctly apply this standard.

113 The Commission's decision is supported by substantial evidence. The Mayflower property has historically been treated as a single grazing unit by all the relevant parties: Mayflower, Gillmore, and the County. Mayflower leased all three parcels as a single grazing unit. The lease agreement granted rights to all three parcels, and under the terms of the lease, Gillmore paid one undifferentiated amount for those rights. Further, Gillmore grazed the Mayflower property as a single unit since the early 1980s. The various parcels are essentially unfenced and Gillmore testified that livestock wandered the entire area. Moreover, the County granted the whole Mayflower property greenbelt status from 1985 to 1992, at which time it decided the property, as a whole, no longer merited greenbelt treatment. The court of appeals erred in finding that the South Mountain parcel should be assessed separately from the remainder of the Mayflower parcels because the foregoing evidence is adequate to convince a reasonable mind to support the Commission's decision to assess all the Mayflower parcels as a single unit.

I 14 In addition to this evidence, the Commission's determination is supported by case precedent and statute. In Judd, we faced the question of whether to assess twelve residential lots of land as a separate parcel or as part of an adjoining twenty-nine acre farm for FAA purposes. We decided that the lots should be considered as part of the farm because they both had been "farmed as a single agricultural unit" from 1987 to 1989. Judd, 846 P.2d at 1296 (footnote omitted). The instant case supports the same conclusion in light of the fact that Gillmore grazed the Mayflower property as a single agricultural unit for over ten years. Moreover, the FAA itself appears to indicate a preference for treating contiguous parcels under the same ownership as one unit rather than as separate parcels. Section 59-2-512 of the FAA states, "Where contiguous land in agricultural use in one ownership is located in more than one county, compliance with the requirements of this part shall be determined on the basis of the total area and income of that land." Utah Code Ann. § 59-2-512 (1996). Although this section applies specifically to parcels located in different counties, the underlying principle would seem to apply equally to contiguous parcels located entirely within one county.

T15 In sum, we hold that the court of appeals erred in determining that the South Mountain parcel should be assessed independently of the other parcels. Under a correct application of the substantial evidence standard of review, the court of appeals is bound to uphold a factual determination of the Commission if it is supported by substantial evidence, even if the court disagrees with that determination.

II. THE MAYFLOWER PROPERTYS QUALIFICATIONS FOR GREENBELT STATUS

116 To qualify for greenbelt status, the Mayflower property must satisfy several criteria set forth in the FAA. These criteria were amended effective January 1, 1998. Because the parties contest the 1992 and 1993 tax year assessments, we must analyze both versions of the FAA.

A. The 1992 FAA Requirements for Greenbelt Status

117 For the 1992 tax year, the FAA allowed land to be greenbelted if the property (1) was five contiguous acres or more; (2) had a gross agricultural income of $1000 or more; (8) was "actively devoted to agricultural use"; and (4) had been "actively devoted to agricultural use for at least two successive years immediately preceding the tax year in issue." Utah Code Ann. § 59-2-508(1) (1992).

118 The only disputed issue regarding Mayflower's eligibility for greenbelt status for 1992 is whether the Mayflower property was "actively devoted to agrieultural use." This is a matter of statutory construction. See Judd, $46 P.2d at 1295 (stating that whether land qualifies for "greenbelt assessment under the FAA is a question of statutory construction"). The court of appeals, therefore, owed no deference to the Commission's ruling on this issue. Likewise, we give no deference to the court of appeals' decision on this particular point. We interpret taxation statutes like the FAA "liberally in favor of the taxpayer." Salt Lake County ex rel. County Bd. of Equalization v. Utah State Tax Comm'n ex rel. Kennecott Corp., TT9 P.2d 1131, 1182 (Utah 1989).

€19 The Commission decided that the Mayflower property was actively devoted to agricultural use for 1992. Though acknowledging that the agricultural use of the South Mountain parcel had diminished, the Commission ruled that the Mayflower property as a whole complied with the greenbelt requirements. The Commission relied on the following facts to arrive at its conclusion: "substantial agricultural use has occurred on the [Mayflower] property"; all the Mayflower property is available for Gillmore's use; there are no legal or physical barriers to prevent Gillmore's use of the whole property; and the lease agreement specifically provides that the Mayflower property be used for agriculture.

120 The court of appeals affirmed the Commission's ruling, focusing its analysis on the South Mountain parcel's active devotion to agricultural use. See Stichting Mayflower, 948 P.2d at 244. The court of appeals based its ruling on a thorough analysis of three Utah Supreme Court decisions that defined the phrase "actively devoted to agricultural use" for purposes of the pre-amendment FAA. See id. at 242-44 (discussing Judd, $46 P.2d 1292; Salt Lake County ex rel. County Bd. of Equalization v. Utah State Tax Comm'n ex rel. Bell Mountain Corp., 819 P.2d 776 (Utah 1991); Kennecott Corp., T9 P.2d 1181).

121 The Board argues that the court of appeals erred in ruling that the South Mountain parcel was "actively devoted to agricultural use." We need not consider this argument. As discussed above, Mayflower's property should be assessed as a single unit, not parcel by parcel. Viewing the Mayflower property as a whole, it was undisputedly "actively devoted to agricultural use" under the 1992 version of the FAA. Mayflower leased its property as graze land and Gill-more utilized it as such to a substantial degree. We therefore affirm the court of appeals' ultimate conclusion that the Mayflower property warranted greenbelt status for the 1992 tax year.

B. The 1998 FAA Requirements for Greenbelt Status

122 Beginning in 19983, the FAA allowed land to be greenbelted if the property (1) is five contiguous acres or more; (2) is "actively devoted to agricultural use," meaning the land produces over 50% of its agricultural capacity; and (8) has been so used for the two years "immediately preceding the tax year in issue." Utah Code Ann. § 59-2-503(1), (2)(a) (1992). In comparison with the previous version of the FAA, the amended FAA simply dropped the $1000 income requirement and created a definition for the "actively devoted to agricultural use" requirement; namely, the property must produce over 50% of its agricultural capacity.

128 The parties dispute whether the Mayflower property meets the 50% production requirement. This is an issue of fact. Therefore, the court of appeals should have reviewed the Commission's determinations under the substantial evidence standard.

1 24 The Commission determined that the Mayflower property satisfied the 50% production minimum. The court of appeals partially reversed the Commission by holding that the North and Density Determination parcels met the requirement but the South Mountain parcel, assessed separately, did not meet the requirement. See Stichting Mayflower, 948 P2d at 246-47. The Board agrees with the court of appeals' ruling but argues in the alternative that if the Mayflower property must be assessed as a whole it cannot satisfy the production requirement. Mayflower argues that its property, as a whole, meets the 50% requirement, and that the court of appeals erred by assessing the South Mountain parcel by itself,

25 To determine whether the Mayflower property satisfies the FAA production requirement we must know the production capacity of the graze land and how much of that capacity was actually used.

1. Production Capacity

26 To assist government entities in ascertaining the agricultural production capacity for a given type of land, the FAA lists three sources for consultation. See Utah Code Ann. § 59-2-503(2)(b). However, none of the listed sources provides production levels for grazing purposes. Therefore, the Commission has published interim production guidelines for graze lands. These guidelines establish four categories of graze land and provide production capacities for each category. The guidelines measure production capacity in terms of Animal Unit Months (AUMs). Essentially, an AUM is the "forage required to maintain" 1 adult cow or 5 adult sheep "in thrifty condition for an average month of the year."

127 The Mayflower property is classified as Graze II, which means it has a production capacity of .63 AUMs per acre. To determine the overall production capacity of the Mayflower property one would simply multiply the AUM capacity of the land (.63 AUM per acre) by the total number of acres grazed by Gillmore's livestock. The parties contest what that total number of grazed acres should be.

128 The Commission found that Gillmore grazed a total, of 4714 acres. That total included 3420 acres of Mayflower property (North parcel, 657.17 acres; Density Determination parcel, 1268 acres; and South Mountain parcel, 1495.11 acres) and approximately 1300 acres of Gillmore's land. The Board argued to the court of appeals that the Commission had not included the South Mountain acres in its total acreage finding. The court of appeals adopted the Board's assertion. See Stichting Mayflower, 943 P.2d at 246-47. However, the court did not go on to expressly review the Commission's total acreage findings because the court erroneously determined that the South Mountain parcel should be assessed separately. See id. Although not expressly stated, the court of. appeals' position is nevertheless apparent. By virtue of adopting the Board's total acreage argument, the court of appeals necessarily espoused the view that the total acreage should be 6209 (4714 plus 1495 South Mountain acres).

129 The Board argues that the court of appeals should 'be affirmed on this point because the Commission's acreage findings did not include the South Mountain acres. The Commission acknowledges in its brief that it did make a slight mistake concerning the total number of acres. The Commission correctly notes that Gillmore actually grazed 1560 of his own acres along with the Mayflower property acres, not 1300 geres as the Commission initially found. Accordingly, the Commission proposes that the actual total acreage should be 4980.5, not 4714.

180 We agree with the Commission and therefore reverse the court of appeals. Gillmore grazed a total of 4980.5 acres. There is no basis in the record for the court of appeals' suggestion that the Commission did not include the South Mountain parcel in its acreage calculation. Finding 20 of the Commission's Final Decision expressly includes South Mountain's 1495 acres as part of the 3420 total acres Mayflower leased to Gillmore. Finding 24 then clearly indicates that the Commission added Mayflower's 3420 acres, which included the South Mountain acres, to an unspecified number of Cillmore acres to arrive at the 4714 total acreage figure currently in dispute. In light of the fact that the parties stipulated that the Mayflower property totaled 8420.51 acres, the only disputable acreage in the Commission's Final Decision involves Gillmore's land. And, in fact, as the Commission admits on appeal, it originally mistotaled Gillmore's land by roughly 260 acres. Although the Commission erred on its total acreage finding, its decision will stand unless its error "substantially prejudiced" the Board, ie., if the Mayflower property cannot satisfy the 50% production requirement given 4980 total acres. See Utah Code Ann. $ 68-46b-16(4) (1997).

131 Based on the foregoing, the production capacity of the Gillmore and Mayflower properties is 3188 AUMs (4980.5 total acres multiplied by .68 AUM capacity per acre). To satisfy the FAA's 50% production requirement, the evidence must show that the lands produced over 1569 AUMs.

2. Actual Usage

132 Actual AUM usage is calculated by multiplying the number of animal units that graze the land by the number of months the animal units graze. Under the Commission's interim guidelines, 1 cow or 5 sheep equal 1 animal unit. The Commission found that 1500 sheep grazed the property for 4 months and that 175 cows grazed the property for 3 months. Thus, the Commission found that actual production equaled 1725 AUMs. Without engaging in any type of review of the Commission's AUM analysis, the court of appeals concluded that the North and Density Determination parcels satisfied the production requirement while the South Mountain parcel did not. See Stichting Mayflower, 948 P.2d at 246. As stated above, the court of appeals should have assessed the Mayflower property as a whole. We therefore reject its conclusions on this point.

133 The Board argues that the Commission erred in finding 1725 AUMs of grazing on the Gillmore and Mayflower property and that based on Gillmore's undisputed testimony the properties only produced 1590 AUMs. To satisfy the greenbelt requirement, however, Mayflower need only show production of at least 1569 AUMs. Based on the Board's own assertions, then, Mayflower has met this requirement.

1 34 We affirm the Commission in holding that the Mayflower property qualified for greenbelt treatment for the 1998 tax year. Although the Commission erred in calculating the total acreage of the grazed land, the error did not prejudice the Board. The Mayflower property still satisfied the 50% production requirement even with the corrected total acreage.

CONCLUSION

11 35 We affirm the court of appeals' ruling that the whole Mayflower property met the FAA requirements for greenbelt status for the 1992 tax year. We reverse the court of appeals' ruling that the South Mountain parcel should have been assessed separately under the amended FAA for the 1998 tax year. In effect, we hold that the court of appeals should have affirmed the Commission's decision.

136 AFFIRMED VERSED in part. in part and RE-

37 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice WILKINS concur in Justice DURRANT's opinion.

      . The court of appeals referred to the South Mountain parcel as the "other"" property.

      . We express no view on the court of appeals' analysis specific to the South Mountain parcel because we need not address that issue. It appears from the court of appeals' opinion that it limited its analysis to the South Mountain parcel because the Board was only disputing that parcel's qualifications under the FAA. See Stichting Mayflower, 943 P.2d at 244 (The "County" in the court of appeals' decision refers to the Wasatch County Board of Equalization).

      . The 1992 replacement volume, 6B, containing title 59 of the Utah Code, offers both the 1992 version and the amended 1993 version of the FAA. For ease of comparison and reference we cite to the 1992 replacement volume for both versions of the FAA.

      . The parties do not dispute that an accurate determination of the Mayflower property's production capacity and its actual production must be based on the total number of acres grazed by the livestock, not just the Mayflower acres at issue in the instant case.

      . In a motion for reconsideration filed with the Commission, the Board argued that the Commission should have included additional substantial acreage in its calculation. However, the Commission declined to do so because of insufficient evidence. The Board now argues that by so ruling the Commission erroneously placed the burden of proof on the Board to establish the total number of acres grazed. We disagree. Mayflower provided evidence concerning the total number of acres it believed Gillmore grazed. If the Board believed those acreage figures were wrong, it was the Board's burden, not Mayflower's, to offer evidence supporting its version of the facts. To hold otherwise would require Mayflower to prove the Board's "theory of the case." We will not endorse such a result.

      . 1500 sheep divided by 5 equals 300 animal units 300 animal units multiplied by 4 months equals 1200 AUMs 175 cows (each equivalent to one animal unit) multiplied by 3 months equals 525 AUMs 1200 AUMs plus 525 AUMs equals 1725 total AUMs

      . It is certainly true that Gillmore substantially reduced his use of the South Mountain parcel due to the threat posed by domestic dogs. He stopped setting up sheep camp on the South Mountain parcel, no longer took the whole herd to the parcel, and when "different bunches" of sheep would wander onto the parcel and graze he would return them to the herd. Nevertheless, he continued to pay rent for grazing rights to the South Mountain parcel, and, in fact, some livestock did still graze the parcel. While the extent of this grazing may well be insufficient to qualify the South Mountain parcel, if assessed alone for greenbelt status, when the parcel is included for assessment with the other two parcels, the property as a whole qualifies for such status. For the reasons we have set forth, we conclude that the Commission's decision to treat the three parcels as a single unit was supported by substantial evidence. Namely, the South Mountain parcel is contiguous to the Density Determination parcel, Mayflower leased all three parcels as one agricultural unit, Gillmore paid for the right to graze the parcels as one agricultural unit, and the County historically taxed the parcels as a single unit. In sum, notwithstanding the diminished use of the South Mountain parcel, Gillmore utilized the other two parcels to such an extent that even when the South Mountain parcel is included, the Mayflower property as a whole still met the 50% production requirement.

      . The Board asserts that Gillmore grazed 50 cows for 3 months (150 AUMs) and 120 cows for 2 months (240 AUMs) for a total of 390 AUMs. Adding 390 cow AUMs to the 1200 sheep AUMs, which the Board apparently does not dispute, equals 1590 AUMs.


source: Caselaw Access Project

author: JACKSON, Associate Presiding Judge:

license: Public Domain

text:
    2000 Utah Ct. App. 204
    Boyd NELSON, Lorraine Nelson, Stephen Whitlock, and Sheila Whitlock, Plaintiffs and Appellants, v. PROVO CITY, a municipal corporation, Defendant and Appellee.
    No. 990578-CA.
    Court of Appeals of Utah.
    June 29, 2000.

      David N. Morténsen, Ivie & Young, Provo, for Appellants.
    David C. Dixon, Provo City Attorney's Office, Provo, for Appellee.
    Before JACKSON, Associate P.J., BENCH, and ORME, JJ.
   OPINION

JACKSON, Associate Presiding Judge:

4 1 This is our second round with this case. About six years ago, we issued Nelson v. Provo City, 872 P.2d 35 (Utah Ct.App.1994), and remanded to the trial court for further proceedings. Boyd and Lorraine Nelson and Steven and Sheila Whitlock (Landowners) now challenge the trial court's decision on remand. We affirm.

BACKGROUND

12 The facts are undisputed. At issue is title to land in Provo that formerly served as 900 South Street between 100 East Street and University Avenue (Old 900 South). Old 900 South abuts the Landowners' property.

183 Under the Federal Townsite Act of 1867, ch. 177, 14 Stat. 541 (1867), codified as 43 U.S.C. § 718, repealed by PL. 94-579, Title VII, § 7083(a), 90 Stat. 2789 (1976), the United States government deeded legal title to the property within the Provo townsite, including Old 900 South and the abutting lands, to Provo Mayor Abraham O. Smoot, as trustee. Even before this conveyance, Old 900 South served as a public road. However, the Landowners' predecessors in interest occupied neither Old 900 South nor the abutting land when the conveyance occurred.

In 1871, Smoot deeded land north of [Old 900 South] to James Dunn, who in 1876 deeded the parcel to Peter Stubbs. In 1982, a portion of the Stubbs parcel was deeded to appellants Stephen Whitlock and Sheila Whitlock. In 1985, Stephen Whit-lock alone received another portion of the Stubbs parcel. Finally, in 1991, appellants Boyd Nelson and Lorraine Nelson received a deed for another portion of the Stubbs parcel.
In 1875, Smoot deeded land south of [Old 900 South] to John P.R. Johnson, as trustee of the First Ward Pasture Company. In 1927, First Ward Pasture Company deeded its parcel to [Provo]. 900 South continued to be used as a public roadway.
In its regularly scheduled meeting of August 22, 1989, the Provo Municipal Council passed ordinance number 0-89-055, which purported to vacate and set aside the [rloadway. ... [Provo] then rerouted a portion of 900 South onto the property it owned to the south of the original route and sold the vacated portion of the original route to a commercial developer....
Landowners sued [Provo] claiming a re-versionary interest in [Old 900 South] from their property lines to the middle of the {former rloadway. They sought compensation and, in. the alternative, the setting aside of the vacation. City counterclaimed for quiet title to [Old 900 South].
On July 6, 1992, the trial court quieted title in [Provo] as against Landowners, concluding that [Provo] held fee simple title since the time of the Townsite Conveyance. Landowners moved for specific findings regarding [Provo's] compliance with the Townsite Act and with the State Township Act. The trial court denied the motion. Landowners appeal[ed].

Nelson v. Provo City, 872 P.2d 35, 36 (Utah Ct. App.1994).

T4 On appeal, we decided that defective notice rendered a nullity Provo's attempted vacation of Old 900 South. See id. at 88. We further determined that Provo could only have had fee simple title to the land if it had "explicitly reserved the Roadway or obtained a deed to the Roadway pursuant to section 57-T-8 or -17"-which it had not. Id. at 87; see also Utah Code Ann. § 57-T-8 (1994) (repealed 1999) ("If a city commissioner or the mayor of any city or the president of the board of trustees of any town shall be a claimant of lands in such city or town, the recorder or the clerk thereof, as the case may be, shall, upon the certificate of the district court made as in the case of other claimants, execute a deed of conveyance to such claimant for the lands finally adjudged to him by the court."); id. § 577-17 (repealed 1999) ("Lots or parcels of land necessary for streets ... may be reserved by the city commissioners, the mayor, the president of the board of trustees or the district judge, as the case may be; and he may execute and deliver to the proper party a deed for any property set aside for such purposes."). We therefore held that "[Provol remains holder of the Roadway in trust," Nelson, 872 P.2d at 37, and remanded to the trial court for the limited purpose of considering Provo's "role as trustee of the Roadway, with its attendant fiduciary duties to the beneficiaries." Id. at 38.

15 The trial court held a trial on February 6, 1995 in which it heard testimony and took documentary evidence. As they have argued throughout this litigation, Landowners asserted again on remand "that a conveyance of land abutting a road impliedly conveys the land to the middle of the road (in spite of a metes and bounds description which does not include any portion of the Roadway)" Ne-son v. Provo City, No. 910400527, slip op. at 4 (Utah Dist.Ct. Feb. 17, 1995). They therefore contended that they own the land area of Old 900 South to the center of the former roadway abutting their parcels and that, upon Provo's vacation of Old 900 South, use and possession of that strip of land reverted to them.

I 6 The trial court responded,
In the Court's determination, the fact that the City held title to the land on which the Roadway was located (albeit in trust) leads to the conclusion that the Roadway was not a road made pursuant to the grant of an easement which would carry with it a reversionary interest. Even supposing that an easement was created when the City received the land in trust which already contained the Roadway, the holder of the easement would be Provo City and the collective occupants of the City of Provo-the same parties who held title to the underlying fee-under these circumstances the easement would merge with the fee. The Court cannot conceive of (and Plaintiffs have not presented preponderating evidence of) how the conveyance of property abutting the Roadway deprives the owners of the underlying fee to the Roadway of their title.

Id. at 4-5

T7 The trial court went on to hold that, although Provo did not properly vacate Old 900 South, vacation proceedings were unnecessary in this case to effect a vacation or abandonment of that street. Finally, the trial court determined

that [Provo] acted within its fiduciary powers and responsibility when it determined that it was in the best interest of the collective occupants of the city of Provo to realign the Roadway to create a functional intersection, and when it sold [Old 900 South] which it held in trust to a private party and deposited the proceeds in the general treasury for the benefit of the collective occupants of the city of Provo.

Id. at 5-6 (footnote omitted).

18 In this second appeal, Landowners do not attack the trial court's conclusion that formal vacation proceedings were unnecessary here; we thus assume for purposes of this appeal that Old 900 South has been legally abandoned or de facto vacated. Nor do Landowners oppose the trial court's determination that Provo properly executed its responsibilities as trustee when it realigned 900 South and sold the land to a private concern, putting the proceeds in its general treasury. The dispositive issue raised by Landowners is whether Provo's interest in Old 900 South is merely a determinable fee, thus causing that property's use and possession to revert to Landowners when Old 900 South was vacated or abandoned. See Nelson, 872 P.2d at 36.

ANALYSIS

19 Landowners' challenge "involves an ultimate conclusion of law as to who owns the disputed piece of property. In reviewing the trial court's conclusions of law, we accord them no particular deference but review them for correctness." Falula Farms, Inc. v. Ludlow, 866 P.2d 569, 571 (Utah Ct.App. 1998).

I. Landowners' Reversionary Interest

110 Landowners support their argument that the land to the center of Old 900 South should revert to them with citation to statutory and case law that mirrors the common law regarding the ownership of the land underlying public highways. For instance, Utah Code Ann. § 72-5-103(8) (1999) states, "A transfer of land bounded by a highway on a right-of way for which the public has only an easement passes the title of the person whose estate is transferred to the middle of the highway." The earlier version of this statute in effect closer to the time of the conveyance from the Provo trustee to Landowners' predecessor in interest stated, "A transfer of land bounded by a highway, passes the title of the person whose estate is transferred, to the center of the highway." Compiled Laws of Utah § 2071 (1888); see, e.g., Falula Farms, 866 P.2d at 571 ("[Alt common law the owner of land which abutted a highway owned up to the middle of the highway.").

111 Under this law, Landowners assert that, when the Provo trustee in 1871 originally deeded to James Dunn (Landowners' predecessor in interest) the land abutting Old 900 South to the north, the trustee also implicitly deeded Dunn the land to the center of Old 900 South-even though the metes and bounds description did not include any part of the street. Then, through the chain of deeds to other predecessors in interest and eventually to Landowners-also with metes and bounds descriptions not including any part of Old 900 South-title to the land to the center of Old 900 South passed to Landowners.

112 As we noted in our previous opinion in this case, this center-of-the-highway rule has been applied in Utah when a local governmental entity has "but a determinable fee and does not own the underlying fee simple." Nelson v. Provo City, 872 P.2d 35, 88 (Utah Ct.App.1994) (footnote omitted). In those cases, "the vacating of the roadway results in the fee reverting to the abutting landowners." Id. We explained that

[a] fee simple determinable expires automatically on the occurrence of a stated event. Thus, where a municipality has a determinable fee in a roadway, common law provides that the limited fee ends when the roadway is vacated. Unlike the situation here a municipality typically obtains a determinable fee in roadways when the same are accepted thereby pursuant to the final approval of a subdivision plat. That was the case in Sears v. Ogden, 572 P.2d 1859, 1863 (Utah 1977).

Id. n. 8 (citations omitted; emphasis added).

113 Aside from Sears, in Falula Farms, defendant's predecessors in interest planned to develop 160 acres. See Falula Farms, 866 P.2d at 570. They filed a plat of the proposed subdivision, dedicating several strips of the property for roads-including one for a county road-then sold lots abutting that road. See id. Later, when the county vacated the road, this court held that the dedication of the road in a subdivision plat by defendant's predecessors in interest had granted the county "a defeasible fee simple title, rather than an absolute fee.... Consequently, the fee simple title to the vacated strip of land reverted to [defendant]." Id. at 573 (footnote omitted); see also Sears, 572 P.2d at 1863 (citing White v. Salt Lake City, 121 Utah 134, 289 P.2d 210 (1952), for the proposition that "the interest a municipal body acquires in the streets in a platted subdivision is a determinable fee" and "[ulpon vacation by the governing authorities, the fee reverts to the abutting property owner").

[ 14 Similarly, in Fenton v. Cedar Lumber & Hardware Co., 17 Utah 2d 99, 404 P.2d 966 (1965), a grantor designated a public street to bisect her tract of land, selling off the land on each side of the planned street to separate parties-predecessors in interest of the plaintiff and defendant. See id. at 967. She then executed a deed to the city for the area containing the planned street, "with the provision that it be 'used for a street and no other purpose.'" Id. The city recorded the deed. See id. The grantor later conveyed to the defendant by quitclaim deed any interest she may own in the "street" property should the city vacate the street. See id. at 967-68. When the city finally did vacate the street (which, incidentally, had never been opened as a public street), the defendant tried to claim the entire width of the street for itself, under the grantor's quitclaim deed. See id. at 968. However, the supreme court held that the original deed from the grantor to plaintiff's predecessor in interest "conveyed her fee interest to the center line of the 'street,' subject to an easement for a public road." Id. The court thus quieted title to the center of the "street" in the plaintiff. See id. In doing so, the court noted that at common law "a private conveyance of land bounded by or abutting on a highway, the fee to which belongs to the abutting owners, is presumed to convey the fee to the highway to the center line thereof." Id. (emphasis added) (citing Hummel v. Young, 1 Utah 2d 2837, 239, 265 P.2d 410, 411 (1958)).

15 Finally, Sowadgki v. Salt Lake County, 36 Utah 127, 104 P. 111 (1909), involved a grantor who divided some acreage into lots and streets, then filed a plat with the city. See id. at 112. In that case, the supreme court stated, '

It is quite true that the original owner may not, after selling lots abutting on a dedicated street or highway, reclaim that portion of the land included within the highway in case it is vacated or abandoned. In parting with his title to the lots the fee passes to the purchaser to the center of the highway, and, if the highway is vacated or abandoned the land belongs to the abutting lot or landowner, and not to the original owner, unless an express reservation to that effect was made in the dedication or conveyance.

Id. at 116-17.

{16 In each of the above cases, a private grantor split a larger tract of land into smaller lots and public streets. The public streets were all dedicated to a local governmental entity when the grantor filed a subdivision plat (except in Fenton, in which the street designation was done by deed). Ree Fenton, 404 P.2d at 967. As we observed in our previous opinion in this case, the above cases are "unlike the situation here." Nelson, 872 P.2d at 38 n. 8. Here, we have a street that existed before the abutting land was occupied or divided into lots; it was not platted concurrent with the division of a larger area into lots. The street was dedicated to public use before the abutting lots were occupied. Further, we have a public entity as the grantor. This case does not feature the "private conveyance of land bounded by or abutting on a highway," which presumably "convey[s] the fee to the highway to the center line thereof." Fenton, 404 P.2d at 968 (emphasis added). In all these ways, the Utah cases awarding the land to the center of a vacated or abandoned highway to abutting landowners are distinguishable from this case. Accordingly, Landowners' assertion that Provo had only a determinable fee in the road that left them a reversionary interest in Old 900 South upon vacation of that road fails.

117 We thus conclude the trial court's ultimate decision denying Landowners any reversionary interest in Old 900 South was correct, although our analysis is different. See Gibbs M. Smith, Inc. v. United States Fidelity & Guar. Co., 949 P.2d 387, 342 n. 8 (Utah 1997) (" 'We may affirm a trial court's decision on any proper ground(s), despite the trial court's having assigned another reason for its ruling." ") (quoting Buehner Block Co. v. UWC Assocs, T52 P.2d 892, 895 (Utah 1988) (footnote omitted)). §

II. Provo's Interest

$18 Because we have determined that the Provo trustee's deed to Landowners' predecessor in interest conveyed no interest in Old 900 South, and since we assume in this opinion that Old 900 South is legally no longer a road, we must conclude that Provo's interest-after the road was legally abandoned or de facto vacated, but before selling to a third party-remained what it was in 1871 (before the original conveyance to Dunn): that of holder of legal title for the benefit of the equitable title holders, the occupants of Provo. See Nelson, 872 P.2d at 37-838 (holding that Provo never reserved Old 900 South by deed as it must have to obtain fee simple absolute and that "city remains holder of [Old 900 South] in trust" under the Federal Townsite Act); see also 839 Am Jur.2d Highways, Streets, and Bridges § 188 (1999) ("[TThe ownership of the fee depends, of course, on the ownership of the land at the time the highway was established and on subsequent conveyances thereof."). As trustee, Provo has since conveyed Old 900 South to a private entity and used the proceeds for the benefit of all Provo's occupants. Landowners have not challenged the propriety of those fiduciary actions.

CONCLUSION

119 We conclude Provo's interest in 900 South before its vacation was not simply a determinable fee leaving Landowners a re-versionary interest to the center of the street. Upon vacation of Old 900 South, Provo thus remained holder of legal title to Old 900 South in trust for all Provo's occupants. Provo's subsequent actions as trustee are not further challenged on appeal.

T 20 Affirmed.

121 I CONCUR: GREGORY K. ORME, Judge.

122 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Judge.

      . For further discussion of the Federal Townsite Act and Utah's legislation facilitating it, please refer to our prior opinion in this case, Nelson v. Provo City, 872 P.2d 35, 36-37 (Utah Ct.App. 1994).

      . Treatment of this issue on remand would seem to be beyond the scope of our remand order. See Nelson, 872 P.2d at 37, 38. However, in a way our prior opinion left this issue open for further discussion. We did conclude that Provo never held the land in fee simple, but held only legal title in trust for Provo's collective occupants as beneficiaries, see id. at 37, and we deemed it unnecessary to decide whether Provo's interest in Old 900 South was a determinable fee, see id. n. 3 ("[We determine that whether City's interest was that of a determinable fee or a fee simple, the interest was held only in trust."). Still, past focus by the parties and courts on the important question of Provo's trusteeship leaves unturned a key to resolving this case: Whether the nature of Provo's interest in the road before vacation was a determinable fee, leaving a reversionary interest in Landowners?

      . Based on our disposition, we need not address other issues raised by Landowners-Le., the trial court's failure to apply the law of the case or whether fee simple absolute title in Provo would be void under the Townsite Act. Also, we have reviewed and decline Provo's request at oral argument for reconsideration of our denial of its previous motion for summary disposition. Finally, Provo listed the following issue in its brief, which was not raised by Landowners nor followed up on by Provo: "Was the district court's decision denying appellants' claim for damages due to a taking by the city supported by the legal principles governing the case?" We thus do not consider it.


author: LEHMAN, Chief Justice.

text:
    Sandra HOUGHTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 96-99.
    Supreme Court of Wyoming.
    May 18, 2000.

      Representing Appellant: Sylvia Lee Hackl, Public Defender; Donna Domonkos, Appellate Counsel; and T. Alan Elrod and Scott J. Olheiser, Student Interns, Wyoming Defender Aid Program.
    Representing Appellee: William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program, and Sandra Boudreaux, Student Intern.
    Before LEHMAN, C.J., and THOMAS, MACY, and GOLDEN, JJ., and TAYLOR, J., Ret.
   LEHMAN, Chief Justice.

This is the second time we have considered Sandra Houghton's appeal from a conviction of felony possession of methamphetamine in violation of Wyo. Stat,. Ann. § 35-7-1081(c)@iii). In the first appeal, a majority of this court found that the search of Hough-ton's purse in the course of a traffic stop of the car in which she was riding violated the Fourth Amendment to the United States Constitution and reversed the conviction on that basis without addressing the other issues raised by Houghton. Houghton v. State, 956 P.2d 363 (1998). The State sought review of that ruling by the United State Supreme Court, which held that the search did not violate the Fourth Amendment and reversed our holding. Wyoming v. Hough ton, 526 U.S. 295, 119 S.Ct. 1297, 148 LEd.2d 408, (1999). On remand to this court from the United States Supreme Court, we are left to consider the three remaining issues raised by Houghton but not addressed in our prior opinion. We find reversible error on the first of those issues, the district court's failure to give a lesser-included offense instruction, and reverse the conviction.

ISSUES

Houghton raises the following issues not previously addressed by this court:

1. Whether the trial court denied her fundamental constitutional right to present a defense by refusing to submit a lesser-included offense instruction to the jury;
2, Whether the trial court violated her right to counsel by interrogating her after she had invoked her constitutional right to counsel;
3. Whether the trial court deprived her of her fundamental constitutional right of confrontation by refusing her request for a continuance in order to obtain a transcript of a witness' prior testimony.

FACTS

On July 23, 1995, at approximately 1:00 a.m., the vehicle in which Houghton was riding as a passenger was stopped by a police officer for speeding and a faulty brake light. While searching the vehicle relative to the driver's open and obvious possession of a syringe which the driver freely admitted he used to take drugs, the officer searched Houghton's purse which he found in the car. Inside the purse, the officer found two bags-a brown bag with a syringe inside containing what was later determined to be approximately .51 grams of methamphetamine and a black bag containing a syringe and a vial. The vial from the black bag was later determined to contain .27 grams of methamphetamine. The substance found in the syringe from the black bag was also determined to be methamphetamine. Wit, nesses for the State gave differing testimony as to the amount of methamphetamine contained in the syringe. The State's expert witness described it as a residue of an undet-erminable amount; a DCI agent involved in the investigation testified that it contained .10 gram of methamphetamine.

At the scene, Houghton admitted ownership of the black bag and its contents but denied any knowledge or ownership of the brown bag and its contents. Houghton was 'arrested and charged with felony possession of methamphetamine in a liquid amount greater than 0.3 of a gram. The day after her arrest, July 24, 1995, Houghton was brought before the court for an initial appearance. She was advised by the court that she had the right to an attorney; that she had the right to remain silent; and that, if she chose not to exercise her right to silence, anything she said could be used against her. Houghton asserted her Sixth Amendment right to counsel by asking the court to appoint counsel to represent her in forma pau-peris. -

On July 25, 1995, Houghton made a written request from the Natrona County Detention Center to speak to Pat Bergen, an offi-eer with the Casper Police Department. She received a response stating that Lieutenant Bergen had been notified and would come to see her when he could. On July 31, 1995, an order was entered appointing counsel to represent Houghton.

The day after the order appointing counsel was entered, August 1, 1995, Agent Chris Peters of the Department of Criminal Investigation interviewed Houghton. It is undisputed that Peters' interview of Houghton was unrelated to Houghton's request to speak with Bergen; Peters testified that he was not aware of the request until sometime later. According to Peters' testimony, the purpose of his interview was to obtain information about the driver of the vehicle in which Houghton was riding on the night of her arrest. In the course of the questioning by Agent Peters, Houghton allegedly made in-culpatory statements concerning the methamphetamine found in her purse at the time of her arrest. After having made the statements, Houghton invoked her right to remain silent and the interview ended.

Sometime later, in response to Houghton's earlier requests to speak with him, Lieutenant Bergen met with Houghton. During their conversation, Houghton told Bergen she had spoken with Agent Peters but that he ended the interview after she invoked her right to silence. Believing that he should not be talking with her either, given her earlier assertion of her right to silence, Bergen ended the conversation.

Prior to trial, on October 17, 1995, Hough-ton filed a motion in limine to preclude any reference during the trial to statements she made to any law enforcement officer after the appointment of counsel. She also filed a motion to suppress aimed specifically at her statements to Agent Peters in the August 1 interview. A hearing was held on the motions on November 1, 1995. In a decision letter issued November 3, 1995, the district court denied the motions, finding that Houghton had requested to communicate with law enforcement; that Peters' purpose in interviewing Houghton was not to obtain information about her but rather general information about methamphetamine and drug trafficking; that Houghton knowingly. and intelligently chose to communicate with law enforcement without her attorney present; and that she knowingly and intelligently waived her right against self incrimination prior to making the statements to Peters. The case proceeded to trial on November 6, 1995, and, based on the court's ruling, Peters testified that Houghton admitted during the interview that all of the items found in her purse, including the syringe containing the larger amount of methamphetamine, belonged to her.

On the second day of trial, Houghton submitted proposed jury instructions to the court, including an instruction on the lesser-included offense of misdemeanor possession. Houghton argued that the instruction was warranted because the elements of misdemeanor possession are identical to part of the elements of felony possession and that the evidence reasonably supported a jury finding that Houghton possessed less than the 0.8 of a gram of methamphetamine required for felony possession and that she, therefore, committed the lesser offense of misdemeanor possession. The district court refused to give the instruction; its reasons for doing so, however, do not appear in the record before us. Houghton objected to the court's refusal to give the lesser-included offense instruction.

On November 7, 1995, the jury returned a verdiet of guilty on the charge of possession of a controlled substance in excess of 0.3 grams. Houghton was sentenced to a term of not less than two nor more than three years in the Wyoming Women's Center with credit for time served.

STANDARD OF REVIEW

Where proper objection is made on the record, a district court's failure to give a lesser-included offense instruction is subject to a de novo standard of review. Paramo v. State, 896 P.2d 1342, 1344 (Wyo.1995). We review a district court's denial of motion to suppress under an abuse of discretion standard, which means an error of law committed by the court under the circumstances. Madrid v. State, 910 P.2d 1340, 1344 (Wyo.1996).

DISCUSSION

The Lesser-Included Offense Instruction

A lesser-included offense instruction is appropriate where: 1) all of the elements of the lesser offense are also elements of the greater offense, and 2) there is some evidence that would rationally permit a jury to find the accused guilty of the lesser offense and not guilty of the greater offense. State v. Keffer, 860 P.2d 1118, 1184 and 1136 (Wyo.1998). The failure to give a lesser-included offense instruction when such an offense exists and the evidence' presented would support conviction of that offense constitutes reversible error. Paramo, 896 P.2d at 1844. ~

Under Wyoming's possession statute, possession of methamphetamine is a misdemean- or if the substance weighs no more than 0.3 gram; it is a felony if the substance weighs more than 0.3 gram. The State concedes that the elements of misdemeanor possession are also elements of felony possession and that misdemeanor possession is a lesser-included offense of felony possession.

We turn then to the question whether there was some evidence that would rationally permit the jury to find Houghton guilty of the lesser-included offense of misdemeanor possession and not guilty of felony possession. That is, was there some evidence from which the jury could have concluded that Houghton possessed 0.3 of a gram or less of methamphetamine? In considering this question, we are bound by the rule that only a minimal amount of evidence is necessary to support the giving of a lesser-included offense instruction. Nava v. State, 904 P.2d 364, 367 (Wyo.1995). In addition, we keep in mind that:

To convict for possession of illicit drugs, the prosecution must establish that [the defendant]: (1) either individually or jointly with another exercised dominion and control over the substance; (2) had knowledge of its presence; and (8) had knowledge that the substance was a controlled substance. Saldana v. State, 846 P.2d 604, 620 (Wyo.1998); Wise v. State, 654 P.2d 116, 119 (Wyo.1982). It is not necessary to offer direct evidence of the defendant's actual possession of the contraband. "[Clireumstantial evidence linking together a series of facts" allowing a reasonable inference that the defendant had the requisite control and knowledge of the substance is sufficient to show constructive possession. Wise 654 P.2d at 119. The court must consider the totality of the circumstances when determining whether sufficient evidence was presented to allow the jury to infer that the defendant had the requisite control and knowledge of the contraband. Urrutia v. State, 924 P.2d 965, 967 (Wyo.1996).

Mora v. State, 984 P.2d 477, 481 (Wyo.1999) (quoting Seeley v. State, 959 P.2d 170, 176 (Wyo.1998)).

At trial, Houghton testified that the black bag found in her purse belonged to her but that the brown bag was not hers and she did not know how it got into her purse. Patrolman Baldwin testified that when he removed the brown bag from Houghton's purse on the night of her arrest, she stated that it was not hers and could not say whose it was. Mr. Angelos, a forensic scientist from the state crime lab who testified on behalf of the State, and who was the only expert witness in the case, testified that the syringe found in the brown bag contained .51 grams of methamphetamine, the syringe found in the black bag contained a residue of methamphetamine of undeterminable weight, and the vial found in the black bag contained .27 grams of methamphetamine. From this testimony, the jury rationally could have concluded, if it believed Houghton's testimony that only the black bag was hers and the State's expert testimony that the weight of the residue in the syringe found in the black bag was un-determinable, that she was in possession of only .27 grams of methamphetamine, less than the amount required for conviction of felony possession.

The State argues that the evidence was not such that the jury could have reached that conclusion because Agent Peters and Patrolman Baldwin testified that the syringe found in the black bag which Hough-ton admitted was hers contained .10 gram of methamphetamine. That amount, the State correctly asserts, combined with the .27 gram in the vial exceeds the amount required for conviction of felony possession. Therefore, the State argues, the evidence supports the conviction for felony possession even if the jury believed Houghton's testimony that only the black bag belonged to her.

The State's argument in this regard is well taken up to the point that it says the evidence was undisputed that the second syringe contained .10 gram of methamphetamine. While it is true that Agent Peters and Patrolman Baldwin testified on behalf of the State that the second syringe contained .10 gram, their testimony was refuted by the testimony of the only expert witness in the case, Mr. Angelos, the forensic scientist called on behalf of the State who had performed thousands of tests relating to controlled substances. He testified that the weight of the residue found in the second syringe was undeterminable. Thus, if the jury believed his testimony, the only measurable amount of methamphetamine in the black bag which Houghton admitted was hers was the .27 gram of methamphetamine found in the vial, an amount insufficient to support conviction for felony possession.

Because there was some evidence that would rationally permit the jury to find Houghton guilty of misdemeanor possession and not guilty of felony possession, we hold that the lesser-included offense instruction should have been given. The district court erred in refusing to give the instruction. The case is, therefore, reversed and remanded for a new trial.

Given our determination that the district court committed reversible error in not giving the lesser-included offense instruction and that Houghton is entitled to a new trial, we address Houghton's second issue-whether her Sixth Amendment right to counsel was violated when she was interviewed outside the presence of counsel on August 1, the day after counsel was appointed to represent her.

Interrogation after Invoking Right to Counsel

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court held that an accused person in custody who has expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication with the police. 451 U.S. at 484-85, 101 S.Ct. at 1885. The Court further held that when an accused has invoked his Fifth Amendment right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. 451 U.S. at 484, 101 S.Ct. at 1885.

Thereafter, in Michigan v. Jackson, 445 U.S. 625, 106 S.Ct. 1404, 89 LEd.2d 631 (1986), the Court extended its holdings in Edwards to apply to a defendant who has been formally charged with a crime and has requested appointment of counsel at his arraignment. The Court reasoned that the Sixth Amendment right to counsel at a pos-tarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at a custodial interrogation. 475 U.S. at 682, 106 S.Ct. at 1408-09. Thus, under Jackson, where a defendant asserts his right to counsel at an arraignment by requesting the appointment of counsel, any subsequent waiver of the right to counsel during police-initiated interrogation is invalid. <

Under Jackson, the question we must answer in the present case is whether the interview conducted by DCI Agent Peters the day after Houghton invoked her right to counsel was police initiated. If it was not, if the interview instead could be said to have been initiated by Houghton, the Jackson rule does not apply, and we must then determine whether the purported waiver obtained from Houghton at the beginning of the interview was knowing and intelligent under the totality of the cireumstances. Jackson, 475 U.S. at 683, 106 S.Ct. at 1409.

In Oregon v. Bradshaw, 462 U.S. 1089, 1045, 1083 S.Ct. 2880, 2835, T7 LEd.2d 405 (1983), the Court held that the accused initiated conversation with the authorities by asking "Well, what is going to happen to me now?" The Court found that this question "evinced a willingness and a desire for a generalized discussion about the investigation" and was not "a necessary inquiry arising out of the incidents of the custodial relationship." 462 U.S. at 1046, 108 S.Ct. at 28835.

Applying this test, we are not persuaded that the interview conducted by DCI Agent Peters violated Houghton's Sixth Amendment right to counsel. By asking to speak with Police Officer Bergen, Houghton evinced a willingness and a desire for a generalized discussion with the authorities. That DCI Agent Peters, rather than Police Officer Bergen, spoke with her does not change our conclusion. The test is whether a defendant "himself initiates dialogue with the authorities." Oregon v. Bradshaw, 462 U.S. at 1044, 108 S.Ct. at 2884 (emphasis added) (quoting Wyrick v. Fields, 459 U.S. 42, 46, 108 S.Ct. 394, 895, 74 L.Ed.2d 214 (1982)). Thus, where a defendant reinitiated communication with an FBI agent after earlier invoking his Fifth Amendment right to counsel, state law enforcement officials were not barred from questioning the defendant even though they were unaware of the reinitiation. Willie v. Maggio, 787 F.2d 1872, 1384 (5th Cir.1984). See also Hopkins v. State, 268 Ga. 354, 484 459, 462 (1998).

Here, after invoking her right to counsel at the July 24 court appearance, Houghton initiated contact with the authorities by requesting in writing on July 25 to speak with Officer Bergen. We turn, therefore, to the question whether the waiver obtained by Agent Peters on August 1 was knowing and intelligent.

Houghton was advised at her court appearance on July 24, 1995, that she had the right to counsel and to remain silent and that if she chose not to exercise her rights anything she said could be used against her. The same day, Houghton signed a written statement of her constitutional rights indicating that she had read the statement and fully understood her rights. On July 25, 1995, the day after she was informed of her rights and requested that an attorney be appointed, Houghton made a written request to speak with Police Officer Bergen. Testimony at the suppression hearing reflected that Houghton asked to speak with Bergen because she viewed him as a friend. On July 31, 1995, Houghton signed another statement of her rights and acknowledged that she understood them. Counsel was appointed to represent her that same day.

The next day, DCI Agent Peters met with Houghton in an interview room at the police department. Peters testified, and his report reflects, that he advised Houghton of her Miranda rights and she agreed to talk to him. According to Peters, Houghton expressed no hesitancy in talking with him. After talking with him for some period, Houghton stated she "did not wish to talk any further and wanted to speak with an attorney before she made any more statements." After this interview, Houghton made phone calls to Peters on at least two occasions and spoke with Police Officer Bergen on one occasion as well.

Given the totality of these cireumstances, we hold that Houghton knowingly and intelligently waived her Sixth Amendment right to counsel and her Fifth Amendment right against self-incrimination. Prior to agreeing to talk with Agent Peters, Houghton was advised of her rights on at least three occasions and knew that counsel had been appointed to represent her. Despite having been informed of her rights, Houghton initiated contact with the authorities by requesting to speak with a police officer. Despite the knowledge that counsel had been appointed to represent her, Houghton agreed to talk with Agent Peters. That she invoked her right to silence and to counsel during the interview with Peters is evidence that she understood her rights. That she later re-initiated contact with Peters and spoke with Officer Bergen without her attorney present even after invoking her rights during the August 1 interview is evidence that she freely and voluntarily chose to communicate with the authorities without her attorney present. The district court did not err in finding that Houghton's statements were admissible and that the motion to suppress should be denied. On remand, Houghton's statements to Peters are admissible as evidence in the new trial

Request for Continuance

We do not find it necessary to address Houghton's final issue-whether the district court erred in denying her request for a continuance until such time as she could obtain a transcript of the suppression hearing. On remand, Houghton will have the tran-seript and can then determine whether. Peters is impeachable based upon any inconsistency in his sworn testimony.

Reversed and remanded for further proceedings consistent with this opinion.


author: HILL, Justice.

text:
    Melody Ann STEELE, Appellant (Plaintiff/Respondent), v. Robert Boyd NEEMAN, Appellee (Defendant/Petitioner).
    No. 99-283.
    Supreme Court of Wyoming.
    June 7, 2000.

      Representing Appellant: Philip White Jr., Laramie, Wyoming. Argument presented by Mr. White.
    Representing Appellee: Daniel B. Bailey of Lubnan, Hand, and Bailey, LLC, Gillette, Wyoming. Argument presented by Mr. Bailey.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   HILL, Justice.

Melodie Ann Steele (Mother) appeals the exercise of jurisdiction by the district court over an interstate child custody/visitation dispute. Mother argues that the Wyoming court no longer retained jurisdiction, or, at the least, that it should have declined to exercise its discretion and deferred jurisdiction in favor of the courts of the State of New York. In addition, Mother challenges the district court's modification of the terms of visitation. We reverse and remand.

ISSUES

Mother presents these statements of the issues presented for review:

I. Considering that the child has lived in New York since 1990 and has not been in Wyoming since 1997, did the Wyoming district court in 1999 meet both of the requirements of 28 U.S.C. § 17838A(d), including the requirement that the Wyoming court still have jurisdiction under W.S. § 20-5-104(a), so as to have continuing jurisdiction to make a child custody/visitation determination or modification?
IL. If so, was it an abuse of discretion for the district court to exercise that jurisdiction instead of deferring to the courts of New York?
III. If the Wyoming court had jurisdiction and properly exercised it, did the district court properly find that it would be in the best interests of the child to fly unaccompanied for his visitations in Wyoming?

Appellee Robert Boyd Neeman (Father) responds with the following statement of the issues:

A. Did the District Court abuse its discretion by extending continuing jurisdiction to modify its child custody orders?
B. Was the Appellant's Notice of Appeal timely filed?
C. Did the District Court abuse its discretion by ruling that the child should fly for visitation as an unaccompanied minor?

FACTS

Mother and Father were married in Colorado on August 1, 1979. Exactly eleven years later, Mother filed for divorcee in Campbell County, Wyoming. The marriage produced one child, born on May 22, 1989. Shortly after filing the action for divorce, Mother and child moved to New York State. Eventually, the parties entered into a settlement agreement resolving issues relating to child custody, support, and visitation. The settlement agreement was incorporated into the Decree of Divorce, which was issued on June 7, 1991. For purposes of the current proceedings, the relevant portion of the Decree of Divorce granted Mother custody of the child in New York while providing for liberal visitation rights to Father including provisions for allowing the child to spend vacations in Wyoming.

In what would become a pattern in the parties' relationship, Father filed a show cause motion in the Wyoming district court on October 3, 1991, claiming that Mother had breached the terms of the settlement agreement and the divorce decree regarding the terms of visitation. The parties resolved the dispute by entering into a stipulation on January 2, 1992. In response, the district court issued an Amended Decree of Divorce on January 6, 1992, adopting the terms of the stipulation.

The dispute then moved to the courts of New York State. In August of 1994, Mother filed a motion to modify visitation in the family court of Chautauqua County, New York. Father appeared with counsel in the matter, apparently for the purpose of contesting the jurisdiction of the New York court. Nevertheless, the parties were able to reach an accommodation, which was memorialized in a settlement agreement. The agreement was subsequently accepted by the New York court and incorporated into an order issued on August 21, 1995. The same scenario was repeated in 1996 when Mother filed a show cause order in the New York family court, which resulted in an oral stipulation again modifying visitation. The New York court issued an order on August 1, 1996, encapsulating the new agreement.

In the action which precipitated the events leading to this proceeding, Father filed a petition to modify child support in the Wyoming district court on February 19, 1998. Mother countered with two motions, one filed in the Wyoming court and the other filed in New York. Mother's Wyoming motion sought dismissal of Father's action based on contentions that the courts of New York had as-, sumed jurisdiction over support matters. The motion filed in New York by Mother sought to have that court modify the terms of child support and visitation. Subsequently, Father filed an amended petition in the Wyoming court, which added issues of child custody and visitation to those regarding support raised in the initial petition.

Meanwhile, on June 28, 1998, the New York court ruled that it did not have jurisdiction over child support issues. New York, however, still claimed jurisdiction over the visitation issue. In a July 14, 1998, letter to the New York court, the Wyoming judge acknowledged that New York was the home state of the child but asserted that Wyoming had still retained jurisdiction. The New York court replied with a letter the very next day in which it reiterated its belief that New York was the home state of the child, giving it jurisdiction over custody and visitation issues. In a subsequent letter on July 15, 1998, the New York court also pointed out that it had already issued at least two orders on visitation and that the latest filing in New York on that subject preceded the Father's Wyoming filing. The record does not disclose any other communications between the two jurisdictions.

The New York court issued a decision on February 17, 1999, ostensibly modifying visitation. The relevant part of that order required Father to accompany the child on flights to and from his visitations to Wyoming. Meanwhile, in an April 1, 1999, order, the Wyoming district court found that it had "continuing, exclusive jurisdiction over issues related to child custody and child support." A hearing was subsequently held on the merits of Father's petition. A decision letter was issued on June 28, 1999, modifying visitation. The Wyoming order conflicted with the New York order in that it allowed the minor child to travel by air to and from Wyoming unaccompanied. Mother now appeals to this Court, challenging the assertion of jurisdiction by the Wyoming court and its decision to allow the child to travel on his own.

STANDARD OF REVIEW

The resolution of this case depends on the interpretation of statutory language:

"We endeavor to interpret statutes in accordance with the Legislature's intent. We begin by making ' "an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection."' * * *"
* * *"When the court determines, as a matter of law, that a statute is clear and unambiguous, it must give effect to the plain language of the statute and should not resort to the rules of statutory construction." * * * If, on the other hand, the Court determines that a statute is ambiguous, it may use extrinsic aids of statutory interpretation to help it determine the legislature's intent.
State ex rel. Wyoming Workers' Safety and Compensation Div. v. Bruhn, 951 P.2d 373, 376 (Wyo.1997) (quoting State Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994) and Lancto v. City of Rawlins, 892 P.2d 800, 802-03 (Wy0.1995)).

Basin Electric Power Co-Op. v. Bowen, 979 P.2d 503, 506 (Wyo.1999). In child eustody proceedings, the determination of whether to exercise jurisdiction or to defer to the courts of another state is reviewed for an abuse of discretion. Ritter v. Ritter, 989 P.2d 109, 111 (Wyo.1999).

DISCUSSION

Initially, we must address a contention raised by Father that Mother's appeal was not timely filed. Father insists that the April 1, 1999, district court order which stated that "IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this Court has continuing, exclusive jurisdiction over matters related to child support and child custody between these parties and their minor child," was a final, appealable order under W.R.A.P. 1.05 (LEXIS 1999). (Emphasis in original.) Since Mother did not file her notice of appeal until September 21, 1999, well outside the allowable 30-day time period, Father contends that the appeal should be dismissed pursuant to WRAP. 1.03 (LEXIS 1999). Mother counters that the April 1, 1999, decision was not a final, appeal-able order because it did not resolve all outstanding issues between the parties. Indeed, Mother notes that the very order cited by Father actually sets a hearing date on the substance of Father's motion to modify visitation.

We agree with Mother. An appeal-able order is "[aln order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment[.]" W.RAP. 1.05(a). "[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." Public Service Commission v. Lower Valley Power, 608 P.2d 660, 661 (Wyo.1980). 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.AP. 1.05(a). The final, appealable order in this matter was the one issued by the district court fully disposing of Father's modification petition on the merits. Since Mother's notice of appeal was timely filed after the issuance of that order, Father's argument is without merit.

The determinative issue in this case is one of jurisdiction. Whether a court has subject matter jurisdiction or not is a question of law to be reviewed de movo. Ritter, 989 P.2d at 111. Since Father still resides in this state, Wyoming has retained jurisdiction as the original decree state. Marquiss v. Marquiss, 837 P.2d 25, 43 (Wyo.1992). The district court's order exercising jurisdiction based on its "continuing, exclusive jurisdiction over matters related to child support and child custody between these parties and their minor child," clearly implies that this was the underlying rationale for the court's assertion of jurisdiction.

However, it is also clear from the record that the courts of New York also had jurisdiction over this matter as the "home state" of the child. The Parental Kidnapping Prevention Act (PKPA) provides:

(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if-
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) State (1) is the home State of the child on the date of the commencement of the proceeding, or (i) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such Statel[.]

28 U.S.C.A. § 1738A(c)(2)(A) (West 1994 and 2000 Cum.Supp.). Both Wyoming and New York law parallel this provision., See Wyo. Stat. Ann. § 20-5-104(a)() (LEXIS 1999) (Uniform Child Custody Jurisdiction Act) and N.Y. Domestic Relations Law § 75-d.1(a) (McKinney 1999). The term "home state," as used in § 1738A¥(c)(2)(A), means "the State in which, immediately preceding the time involved, the child lived with his parents, a parent or a person acting as parent, for at least six consecutive months, and ... [pleriods of temporary absence of any of such persons are counted as part of the six-month or other period[.]" 28 U.S.C.A. § 17838A(b)(4) (West 1994 and 2000 Cum. Supp.); see also Wyo. Stat, Ann. § 20-5-103(a)(v); and N.Y. Domestic Relations Law § 75-c. 5. The test to determine a child's home state is mechanical in nature: If, at the time of the commencement of the proceedings, the child or a parent has lived in a state for six months, then that state has jurisdiction as the "home state." The term "at the time of commencement of the proceeding" refers to the period immediately preceding the filing of the subject action. See Tufares v. Wright, 98 N.M. 8, 644 P.2d 522, 524-25 (1982) ("Home state" under the PKPA); Henricks and Henricks, 115 Or.App. 718, 839 P.2d 766, 768 (1992) ("Home state" under UCCJA); State in Interest of D.S.K., 792 P.2d 118, 125 & fu. 6 (Utah App.1990) ("Home state" under UCCJA); and Mott for Rivazfar v. Rivazfar, 236 A.D.2d 819, 653 N.Y.S.2d 760, 762 (1997), affirmed, 91 N.Y.2d 856, 668 N.Y.S.2d 551, 691 N.E.2d 623. Here, it is clear that under any of the laws cited above, New York is the "home state" of the child: The child has lived continuously in that state since shortly after his birth in 1989.

This case, then, presents a situation of concurrent jurisdiction. The PKPA gives primacy to the original decree state. Margquiss, 837 P.2d at 37-38. That primacy, however, is not absolute:

Although it is clearly recognized that the PKPA amended the UCCJA by creating a decree forum state predominance, [Mitchell v. Mitchell, 437 So.2d 122 (Ala.Civ.App.1982) 1, it should not be considered that for modification, Wyo.Stat. § 20-5-107 is rendered completely ineffective. Of even more significance, Wyoming jurisdiction as the decree court in seeking to remain informed can elect to decline to exercise jurisdiction under Wyo. Stat. § 20-5-108 in meeting the alternative condition of 28 U.S.C. § (declination to exercise jurisdiction to modify or by yielding to the new home state to enforce).
The courts have uniformly affirmed a trial court discretion to yield jurisdiction to a present home state, whether based on PKPA primacy decree jurisdiction, Murphy v. Woerner, 748 P.2d 749 (Alaska 1988), or UCCJA concurrent jurisdiction. Zellat v. Zellat, 351 Pa.Super. 623, 506 A.2d 946 (1986) (where Pennsylvania yielded to a mother's new home state in Tennessee). There is also authority that even with jurisdiction as the decree state, the court should, at least initially, yield to the present home state. Schlumpf v. Superior Court of Trinity County, T9 Cal.App.3d 892, 145 Cal.Rptr. 190 (1978). For a "best interest consideration," see Clark v. Superior Court In and For Mendocino County, T3 CalApp.3d 298, 140 CallRptr. 709 (1977). A contrary result to find abuse of discretion results if the trial court decision was apparently based on jurisdiction instead of discretion. In re Marriage of McEvoy, 414 NW.2d 855 (Iowa App.1987); In re Marriage of Corrie, 832 Wash. App. 592, 648 P.2d 501.

Margquiss, 837 P.2d at 43-44 (footnotes omitted). Thus, even in cases where Wyoming is the original decree state, when the issue of concurrent jurisdiction is raised, the court has the duty to make a determination whether to exercise its discretion and retain jurisdiction over the matter or to defer to the courts of the other state. If a court retains jurisdiction solely on the grounds that it issued the original decree, then it has abused its discretion: The existence of jurisdiction is not determinative of whether that jurisdiction should be exercised under the cireum-stances of a particular case.

The only basis appearing in the record in support of the district court's exercise of jurisdiction is its statement that it has "continuing, exclusive jurisdiction." The import of that statement is that the district court exercised jurisdiction based solely on its status as the issuer of the original decree. This is insufficient to justify exercising jurisdiction in a situation where concurrent jurisdiction exists. Marquiss, 887 P.2d at 44. The exercise of jurisdiction based solely on the court's status as the original decree jurisdiction is an abuse of discretion because the court has, in fact, failed to exercise any discretion. This constitutes reversible error.

Upon remand, the district court should engage in the analysis set forth in Wyoming's UCCJA, Wyo. Stat. Aun. §§ 20-5-101 to -125 (LEXIS 1999). If a court determines that concurrent jurisdiction exists, a decision to exercise jurisdiction or not will be guided by the principles set forth in § 20-5-108(c) and the purposes behind the UCCJA set forth at § 20-56-102. Ritter, 989 P.2d at 112-13. The court shall make findings on the record consistent with the factors set forth in those two statutes. A failure to include the reasoning behind a decision whether to exercise jurisdiction or not is an abuse of discretion. If we review a district court's discretionary ruling without knowledge of the court's underlying rationale, then our conclusions as to the reasons behind the district court's decision are merely speculation. In order for any review of a discretionary ruling to be meaningful, we must know the underlying basis for the district court's action.

Furthermore, the UCCJA provides guidance for those situations, such as exists here, where proceedings concerning the same child are pending in another jurisdiction. Wyo. Stat. Ann. § 20-5-107(c). One of the central purposes of the UCCJA is to prevent the very result which obtained in this case: Two different custody orders relating to the same child issued concurrently by two separate jurisdictions. See Wyo. Stat. Ann. § 20-5-102(a). When a court of this state is confronted with the fact that a similar proceeding is pending in another jurisdiction, it shall stay the proceeding and communicate with the other court in an attempt to ensure that the issues are litigated in the most appropriate forum. Wyo. Stat. Ann. § 20-5-107(c). We reiterate what we have previously stated:

Interstate jurisdictional cooperation should be a primary effort before any actual modification of the visitation decree or general custody change as a last answer is undertaken.

Margquiss, 837 P.2d at 48. (citations and footnote omitted). We acknowledge that there may be instances where the attempts to communicate with the other court to resolve the matter may be ineffective, and that may very well have been the case here. However, the only evidence in the record is the correspondence between the Wyoming and New York courts, which only flluminates the nature of the dispute but does not inform us of what steps, if any, were taken to resolve it. Again, for there to be a meaningful review, we must know what actions the district court took to resolve the controversy in order to determine whether there was an abuse of discretion by the district court in its decision to modify the visitation decree without reaching a resolution with the other court. Therefore, in addition to the findings required above, a court shall also include findings and conclusions relating to the resolution of jurisdictional conflicts in those instances where a parallel proceeding is pending in the courts of another state.

CONCLUSION

When the possibility of concurrent jurisdiction is raised in a child custody dispute, the district court should initially make a determination if the other state does in fact possess jurisdiction under the PKPA. If the other state can legitimately exercise jurisdiction over the children at issue, then the court should proceed to analyze the facts of the case in light of the provisions of the UCCJA; and, similarly, when another proceeding is pending in another state court, then the Wyoming court should communicate with it in an effort to determine which court would be the appropriate forum for resolution of the dispute. The findings and conclusions of the court should be placed on the record. Failure to adhere to this procedure constitutes an abuse of discretion.

We reverse and remand this matter to the district court for resolution in accordance with this opinion.

      . 20-5-108, Court may decline to exercise jurisdiction.

      , (c) In order to determine whether it is an inconvenient forum, the court shall consider whether it is in the interest of the child that another state assume jurisdiction and for this purpose may take into account the following factors, among others:
      (i) Whether another state is or recently was the child's home state;
      (ii) Whether another state has a closer connection with the child and his family or with the child and one (1) or more of the contestants; |
      (iii) Whether substantial evidence concerning the child's present or future care, protection, training and personal relationships is more readily available in another state;
      (iv) Whether the parties have agreed on another forum which is no less appropriate; and
      (v) Whether the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in W.S. 20-5-102.

      . 20-5-102. Purpose.
      (a) The general purposes of this act are:
      (i) To avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
      (ii) To promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
      (iii) To assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
      (iv) To discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
      (v) To deter abductions and other unilateral removals of children undertaken to obtain custody awards:
      (vi) To avoid relitigation of custody decisions of other states in this state insofar as feasible;
      (vii) To facilitate the enforcement of custody decrees of other states;
      (viii) To promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and
      (ix) To make uniform the law of those states which enact it.
      (b) The provisions of this act shall be construed to promote the general purposes stated in this section.

      . 20-5-107. Exercise of jurisdiction by court in this state; proceedings in other states.
      (c) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before this court assumed jurisdiction, the court shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with W.S. 20-5-120 through 20-5-123. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of this fact. If the court is informed that a proceeding was commenced in another state after this court assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the most appropriate forum.