author: HILL, Chief Justice.

text:
    2004 WY 72
    Gavin DONNELLY, Appellant(Plaintiff), v. Connie DONNELLY, Appellee (Defendant).
    No. 03-177.
    Supreme Court of Wyoming.
    June 24, 2004.

      Representing Appellant: Devon O'Connell Coleman and Eric R. Boyer of Pence and MacMillan LLC, Laramie, Wyoming.
    Representing Appellee: Patrick M. Hunter of Casper, Wyoming.
    Representing Guardian Ad Litem: John M. Burman, Faculty Supervisor; and Deborah L. Tyser, Student Intern, UW Legal Services, Laramie, Wyoming.
    Before HILL, C.J., and GOLDEN, and LEHMAN, JJ., and JAMES, D.J., and SKAVDAHL, D.J.
   HILL, Chief Justice.

[T1] Appellant, Gavin Donnelly (Father), seeks review of the district court's decree of divorcee that awarded primary custody of the parties' children to Appellee, Connie Donnelly (Mother). The district court appointed a guardian ad litem (GAL) to represent the best interests of the parties' children in these proceedings.

[T2] Father contends that the district court erred in denying his motion for new trial, which was premised upon the basis that confidential statements he made during mediation were communicated to the parties and were made known to the judge during the trial to the court. He also asserts that the district court abused its discretion when it granted primary custody to Mother based solely upon gender and contrary to the weight of the evidence. In addition, Father challenges the district court's failure to include in its decision letter a ruling from the bench that he would be entitled to visitation with the children for not less than forty percent of their time. Mother asserts that the district court's rulings were entirely proper and that Father's appeal is without merit thus entitling her to an award of costs, attorney's fees, and a penalty. We will affirm and decline to award Mother a penalty or attorney's fees under W.R.A.P. 10.05.

ISSUES

[13] Father raises these issues:

I. Was it clearly erroneous for the district court to deny [Father's] motion for a mistrial due to the egregious release of confidential statements made during mediation; did the district court's denial result in manifest injustice to [Father]?
II. Did the district court abuse its discretion when it granted primary residential custody to [Mother] based solely on gender and contrary to the evidence?
III. Was it an abuse of discretion for the district court to rule from the bench that the non-custodial parent would not get less than forty percent of the time with the children, then rule to the contrary in its decision letter and subsequently deny [Father's] motion for amendment of judgment?

Mother couches the issues in these terms:

1. Did the district court properly deny [Father's] motion for a mistrial, when it is clear that nothing regarding any activity or communications between the mediator and [Father] affected or influenced the district court's decision.
2. Is it an abuse of discretion for the district court, in part, to base a custody decision on the gender based parenting roles the parties had adopted throughout the marriage, thereby minimizing the stress adjustment for the minor children.
3. Did the district court rule from the bench on the appropriate amount of visitation.
4. Is there no reasonable cause for appeal, for which the Supreme Court may award attorney's fees to [Mother].

The GAL filed a brief with this statement of the issues:

I. Did the district court act within its discretion in denying [Father's] motion for a mistrial?
IL - Did the district court act within its discretion when it granted primary residential custody to [Mother]?
III. Did the district court rule only once and therefore properly deny [Father's] motion to amend the judgment?

FACTS AND PROCEEDINGS

[T4] Father's complaint seeking a divoree was filed on July 19, 2002. Two children were born of the marriage, a girl born on April 14, 1997, and a boy born September 19, 1999. On October 24, 2002, a guardian ad litem (GAL) was appointed to represent the children, and the district court provided detailed guidance to the GAL. By order entered on October 29, 2002, the district court awarded temporary residential custody to Mother during the school/work week (Sunday afternoon through Thursday), and to Father (Thursday evening through Sunday). The district court's final decree made that arrangement permanent.

[T5] All matters with respect to the divoree were settled, with the exception of custody of the children. Both Mother and Father sought to have residential (primary) custody of the children during the work/ school week, with the other having as much visitation as possible. Each parent considered the other to be a very good parent, and the record amply demonstrates that both were good parents.

[16] On July 17, 2002, Mother abruptly left the marriage and the family home in Laramie, without notice to Father. Mother moved to Casper to be near her sister and eventually set up a home there for herself and the children. A few days later, she accepted that Father wanted to take the children back to Laramie for a visit. When Mother went to Laramie to pick up the children and return with them to Casper, she and Father got into a heated quarrel about the children that both regretted. Father reluctantly allowed Mother to take the children back to Casper.

[17] Mother contended that she should be awarded residential (primary) custody on a permanent basis because she had traditionally been the "stay-at-home mom," who provided the children with day-to-day care, and she was able to fulfill that role in Casper even though she worked five days a week. Father contended that he should be awarded primary custody because Laramie had been the children's home all of their lives. In addition, Father had a more stable life and a more flexible work schedule. Because of those factors, he could spend more time at home with the children during the week (Le., there would be less day care, which had always been a goal of both parents). Mother lived in a two-bedroom apartment, without an adjoining yard (although it did have a communal yard with a playground and other child-friendly amenities), whereas Father owned the family's spacious home that had its own yard. Father lived across the street from a school the children could attend, whereas in Casper the children were placed in a school that required them to ride a bus 40 miles per day. We decline to set out Father's exhaustive critique of Mother, or Mother's more abbreviated critique of Father. The district court's decision letter made clear that the evidence established that both were fit and proper parents to have custody of the children. It is clear that the district court viewed their respective shortcomings as the ordinary frailties of all human beings, choosing instead to foeus on the many positive qualities of both parents, and then making the daunting and challenging task of "dividing" the children between their parents.

[T8] After a two-day trial, the district court settled the custody issues making permanent the custody resolution detailed in the temporary custody order. entered on July 15, 2008. That order was

DISCUSSION

Denial of Motion for Mistrial

[19] Before trial on the issue of custody, the parties engaged in voluntary mediation in an attempt to settle their dispute. Eventual ly, that mediation attempt ended without bearing fruit. During a pretrial conference the district court indicated that what transpired during settlement negotiations would not be admissible at trial. Nonetheless, during the trial to the court, Mother's attorney asked Father questions about his communications with the mediator and some of those questions were answered. The answers tended to cast Father in an unfavorable light. The mediator conveyed that information to Mother's attorney, as well as to the GAL. It is not necessary to set out the details or the tenor of those revelations, because to do so would only exacerbate a problem that this appeal is designed to resolve. Father contends that he was so prejudiced by those revelations that the district court was duty bound to grant his motion for a mistrial, so that the case could be tried before a judge not tainted by that information.

[T10] Although pertinent authority does not support the contention that a new trial is mandated by these cireumstances, the argument is premised on some interesting threads of argument. In VIL v. RED, 2002 WY 25, ¶ 16 n. 3, 39 P.3d 1110, ¶ 16 n. 8 (Wyo0.2002), we noted:

We make no ruling as to the propriety of the mediator's report. We note only that the function of a mediator is to be a conciliator, to bring parties together in an effort to reconcile their differences. Interjecting oneself into court proceedings after the fact of the mediation as basically a witness to discredit the truthfulness and character of a party to the mediation would not seem to comport with the functions of a mediator.

Of course, the mediator was not a witness in this case, though it is clear that confidential information was communicated outside the confines of that mediation to Mother's attorney and the GAL, and eventually to the trial court.

[111] Wyoming's mediation statute provides this guidance:

§ 1-43-101. Definitions.
(a) As used in this act:
) "Communication" means any item of information disclosed during the mediation process through files, reports, interviews, discussions, memoranda, case summaries, notes, work products of the mediator, or any other item of information disclosed during the mediation, whether oral or written;
§ 1-43-102. General rule of confidentiality.
Any communication is confidential if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the mediation process or those reasonably necessary for the transmission of the communication.
§ 143-103. General rule of privilege; claiming privilege; exception.
(a) A party to the mediation has a privilege to refuse to disclose and to prevent all mediation participants from disclosing confidential communications.
(b) The privilege under this section may be claimed by a representative of the party or by a party, his guardian or conservator, the personal representative of a deceased party, or the successor, trustee or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the mediator may claim the privilege but only on behalf of the party. The mediator's authority to do so is presumed in the absence of evidence to the contrary.
(c) There is no privilege under this seetion if any one (1) of the following conditions is met:
() All the parties involved provide written consent to disclose;
®) The communication involves the contemplation of a future erime or harmful act;
(i) The communication indicates that a minor child has been or is the suspected victim of child abuse as defined by local statute;
(iv) The communication was otherwise discoverable prior to the mediation;
(v) One of the parties seeks judicial enforcement of the mediated agreement.

[112] The district court determined that it would not consider any of that evidence and, thus, the issues of confidentiality and privilege were not analyzed in detail by the trial court. The motion for mistrial could have been styled as a motion for new trial as well, and its posture as a motion for mistrial is unusual, given that this was a trial to the court. On appeal from a trial to the court sitting without a jury, we presume that the district court disregarded any improperly admitted evidence unless the record affirmatively demonstrates that the court's decision was influenced by that evidence. Carlton v. Carlton, 997 P.2d 1028, 1033 (Wyo.2000); Hillard v. Marshall, 888 P.2d 1255, 1261 (Wyo.1995).

[1183] In Feeney v. State, 714 P.2d 1229, 1230 (Wyo.1986) we held:

On appeal it is presumed, in cases tried by a court without a jury, that the court in reaching its decision disregarded improperly admitted evidence unless the record affirmatively shows that the trial court's decision was influenced by improperly admitted evidence. X v. ¥, Wyo., 482 P.2d 688 (1971).
The reason behind the rule is amply explained in Yount v. Strickland, 17 Wyo. 526, 101 P. 942, 944 (1909), which held that, since a trial judge can "sift the wheat from the chaff," in a case tried by a court without a jury, the admission of incompetent evidence is not presumed to be prejudicial. Cooley v. Frank, 68 Wyo. 436, 235 P.2d 446 (1951); Russell v. Curran, 66 Wyo. 173, 206 P.2d 1159 (1949); Williams v. Yocum, 37 Wyo. 432, 263 P. 607 (1928). [Footnote 1 omitted.]
This is the general rule as also expressed in 5 C.J.S. Appeal and Error § 1564(5), and 5A C.J.S. Appeal and Error § 1728.
Thus, the rule presumes that the judge will disregard the inadmissible evidence in making a decision. In this case, the trial judge even acknowledged on the record that the evidence that appellant refused to take a field sobriety test would be disregarded when making a decision. There is sufficient evidence in the record absent the evidence that Feeney refused the test for proper conviction of driving while under the influence, and therefore no error was committed. Herman v. Speed King Manufacturing Company, [Wyo., 675 P.2d 1271 (1984)] supra.

Also see Holt v. Sarver, 442 F.2d 304, 307 (8th Cir.1971) ("In nonjury cases tried to the court it is well settled that we will not reverse for the erroneous reception of evidence unless it appears that the competent evidence is insufficient to support the judgment or that the court was induced by incompetent evidence to make an essential finding which it would not otherwise have made.").

[T14] This discussion from 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence § 5041, at 227-29 (1977) is also instructive:

This model will need to be somewhat modified in cases tried without a jury. Most of the required modifications follow from the absence of that separation of function between trier of fact and judge of admissibility. Since it is impossible for the judge to rule on most objections without seeing the evidence-and a good deal of other material not strictly relevant to the case-many objections become futile as a practical matter. Moreover, the presumed sophistication of the judge is thought to permit him to do much of the work of weeding out weak evidence at the time of decision rather than at the point of introduction of the evidence. This leads to a prejudice in favor of admissibility and an informal manner of handling objections summed up in the ominous ruling: "I'll let it in for what it is worth"
It is important to note that the principal prop for this attitude toward the rules in court trials is a presumption on appeal that the judge did not consider any inadmissible evidence in reaching his decision. Nowhere is there any explicit authorization to disregard the rules in nonjury cases. Indeed, one can argue that the failure to limit the seope of the Evidence Rules to jury trials, as suggested by many commentators, constitutes an explicit rejection of the notion that the rules do not apply in trials without a jury. Ih a sense, then, the power of the judge to disregard the rules 'of evidence is like the power of the jury to disregard the substantive law; both flow from a failure to sanction the departure from the rules rather than a clear grant of power to ignore them. While it is true that departing from the rules of evidence is not as serious a matter as nullification of the substantive law, still it should be recognized that in each case the failure to prevent the departure is the result of an expectation that the de facto power thus conferred will be exercised in a responsible manner.
A responsible exercise of the court's ability to depart from the Rules in nonjury cases certainly entails more than just sloughing off objections with the hackneyed promise that it will only be considered for what it is worth. The judge should consider the nature of the objection; it is appropriate to slide by the technical requirements of the best evidence rule but few would argue that the judge was justified in ignoring a claim of privilege. If the objection involvés probative worth, the judge might convert the admission-exelusion process into a consideration of what weight he should give the evidence. Often the same factors that govern admissibility will be relevant in this inquiry. If the evidence involves evidence that might prejudice a juror, the judge ought not lightly assume that he is immune from its emotional impact. In some cases it may be appropriate to have the question of admissibility decided by another judge or by a master.
The judge must also keep in mind that the offer of proof in a nonjury case serves an additional purpose; it should not only show whether the exclusion of evidence is harmless, but also "provide the appellate court with material for a possible final disposition of the case in the event of reversal." This argues for the greater use of the question-and-answer form of offer of proof in nonjury cases. This makes quite attractive the procedure for admission and exclusion suggested by McCormack. He proposes that the trial judge admit virtually all of the evidence, reserving questions of admissibility until the close of proof-taking. Then should the judge decide to strike the evidence, it remains in the record as an offer of proof for the reviewing court. This procedure probably produces better rulings since the parties can prepare their arguments with greater care and in light of the entire record. It may save time since the parties may decide to abandon the less significant objections and the argument on admissibility can be combined with arguments on how the evidence should be evaluated on the merits,. The principal disadvantage of this method is the tendency to produce gargantuan records.

[115] In this instance, the district court gave careful and thorough consideration to Father's motion for a mistrial in its decision letter. At the conclusion of that discussion, the district court forthrightly stated:

The mediation the parties entered into was not court ordered. The Court appre-clates the parties in fact made one more attempt to settle this matter before resorting to the adversarial process of litigation. The record indicates [Father] may have had a conversation with the mediator shortly before this trial. In that conversation he may have fired ... the mediator. Ultimately the mediation was unsuccessful and the matters are now before the Court. Whether the conversation occurred before or after [Father] technically fired the mediator is irrelevant. [Father] had the ability to terminate the services of the mediator. [Father] has every right to maintain the confidentiality of those proceedings. Whatever behavior [Father] may or may not have engaged in during that conversation is also irrelevant. The fact of the matter is that ultimately the mediation was unsuccessful and the issues of custody, support, and visitation are now before the Court. Any evidence admitted relating to this conversation, or evidence relating to any part of negotiations of settlement for that matter, have absolutely no impact on decisions made pertaining to these issues.
At no point during the trial were specific references to any settlement negotiations ever allowed into evidence. The Court remains unaware of any settlement or offers which may have been tossed around during negotiations. No evidence was placed before the Court regarding statements made during compromise negotiations. The Court has not and will not consider allegations regarding the conduct of either party during negotiations or mediation, and will discuss custody, visitation, and related matters strictly on the evi-denee received at trial pertaining to these parties' ability to parent in accord with what is in the best interests of these children. This was not a trial to a jury but was in fact a trial to this Court. No evidence was presented which would necessitate a mistrial. On the other hand, granting a mistrial would constitute grave and extreme prejudice to the children. [Emphasis in original.]

[116] The record is also clear that the GAL's recommendations were limited to the evidence adduced at trial and focused on the statutory factors that bear on a determination of what is in the best interests of the children. There is no suggestion that the GAL's recommendations were colored by confidential information or that the district court was otherwise influenced by improper information. The initial written report of the GAL's recommendations is not a part of the record. Father asks that we speculate that the report was favorable to him, whereas the GAL's closing argument recommended that Mother have primary custody, and was thus unfavorable to him. Father then asks that we speculate further and conclude that the reason the GAL recommended as he did was because of the confidential information communicated to him by the mediator. We decline to so speculate. The GAL's closing argument, as well as his position in this appeal, are grounded in the evidence adduced at trial and focus solely upon the statutory factors pertinent to child custody determinations. Moreover, the GAL's closing argument was a product of seeing and hearing all witnesses who testified and with access to all documentary evidence admitted at trial, The GAL's argument to the district court is consistent with that evidence and supported by that evidence.

[117] Based upon our careful and thorough review of the record, we conclude that the district court did not err, or in any way abuse its discretion, in denying the motion for mistrial under the cireumstances of this case. In addition, considering these cireum-stances in their totality we do not find the presence of a manifest injustice. Robbins v. Robbins, 2002 WY 80, ¶¶ 7-9, 46 P.3d 880, 882-83, ¶¶ 7-9; Moore v. Moore, 809 P.2d 261, 264 (Wyo.1991).

Gender as Basis for District Court's Ruling

[T18] The governing statute is clear without equivocation in this regard:

§ 20-2-201. Disposition and maintenance of children in decree or order; access to records.
(a) In granting a divorce, separation or annulment of a marriage or upon the establishment of paternity pursuant to W.S. 14-2-401 through 14-2-907, the court may make by decree or order any disposition of the children that appears most expedient and in the best interests of the children. In determining the best interests of the child, the court shall consider, but is not limited to, the following factors:
(i) The quality of the relationship each child has with each parent;
(ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed;
(ifi) The relative competency and fitness of each parent;
(iv) Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;
(v) How the parents and each child can best maintain and strengthen a relationship with each other;
(vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved;
(vii) The ability and willingness «of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;
(vili) Geographic distance between the parents' residences;
. (ix) The current physical and mental ability of each parent to care for each child; |
(x) Any other factors the court deems necessary and relevant.
(b) In any proceeding in which the custody of a child is at issue the court shall not prefer one (1) parent as a custodian solely because of gender.
(c) The court shall consider evidence of spousal abuse or child abuse as being contrary to the best interest of the children. If the court finds that family violence has occurred, the court shall make arrangements for visitation that best protects the children and the abused spouse from further harm.
(d) The court shall order custody in well defined terms to promote understanding and compliance by the parties Custody shall be erafted to promote the best interests of the children, and may include any combination of joint, shared or sole custody.
(e) Unless otherwise ordered by the court, the noneustodial parent shall have the same right of access as the parent awarded custody to any records relating to the child of the parties, including school records, activities, teachers and teachers' conferences as well'as medical and dental treatment providers and mental health records.
(f) At any time the court may require parents to attend appropriate parenting classes, including but not limited to, parenting classes to lessen the effects of divoree on children. [Emphasis added.]

[119] Custody matters are committed to the sound discretion of the trial court. The welfare and needs of the children are to be given paramount importance. We will not overturn the decision of the trial court unless we are convinced that it constitutes an abuse of discretion or violates some legal principle. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria. It means exercising sound judgment with regard to what is right under the cireum-stances and without doing so arbitrarily or capriciously. - Our review includes an evaluation of the evidence to support the trial court's decision, and we afford the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. We cannot sustain findings of fact that are not supported by the evidence, contrary to the evidence, or against the great weight of the evidence. An abuse of discretion is present when a material factor deserving significant weight is ignored. Consideration of gender is not prohibited in a custody determination. The governing statute simply prohibits gender from being the "sole" basis of a custody award. Every case requires careful weigh ing of relevant factors, looking to the unique and individual family relationships, in order to reach a resolution that is in the best interests of the children. To determine whether a district court has abused its discretion, we must rely upon the district court's articulation of the factors that were considered and how those factors support its conclusions. Pace v. Pace, 2001 WY 43, ¶¶ 9-13, 22 P.3d 861, ¶¶ 9-13 (Wyo.2001). We have held that a gender based, maternal preference in custody awards is a mistake of law, requiring reversal. Basolo v. Basolo, 907 P.2d 348, 355 (Wyo.1995).

[120] Father's contentions in this regard are founded in the district court's description of the roles played by the two parents during their marriage. Mother, was a "stay at home mom" who "bathed, dressed, and fed the children. She maintained the home, prepared the meals and did all other housework. She read to the children, helped them with basic educational skills, took them to the park, and provided transportation to their extracurricular activities." Father was a very engaged parent and helped Mother with most of the child rearing tasks. He "more naturally fit into a traditional fatherhood role. He worked forty (40) plus hours a week. He traveled to attend seminars, training sessions, and worked on special projects toward enhancing his experience and career, with [Mother] staying at home with the kids." The difficult decision that the district court confronted is captured in this excerpt from its decision letter:

Perhaps one of the most difficult decisions is the determination of custody and visitation when both parents display qualities of propriety and fitness that these parties demonstrate. This is not a situation where one parent "wins" and the other parent "loses." To the contrary, they remain the parents of [the children], and they are obligated to act in their best interests at all times. Regardless of the outcome, [the children] will "win" if their parents determine to make this Court's decision work and if they set aside their own differences in favor of the children. [The children] will "lose" if their parents do otherwise. Neither is this a matter where the Court is called upon to determine that one parent is "better" than the other. Both parties love their children. Nevertheless, the Court must make a determination as to custody and visitation.
The evidence indicated that [Mother] has served as [the children's] primary caretaker since their births. This is not, of course, determinative, but it is a consideration that the Court bears in mind. [The children] have good relationships with both parents, and both parents care deeply for them. Both presently are capable of caring for [the children}, and both are willing and eager to accept that responsibility. When the children are with their father, the evidence demonstrated a positive, rewarding experience for both father and children. Likewise, the kids do equally well with their mother. Any unusual behavior exhibited by either child after a transfer from one party to the other is probably in the nature of a temporary, situational issue rather than any sort of long-term fundamental problem. [The children] are both intelligent, happy children who seem to be adjusting to their parents' separation.
The parties agree that if they were to reside in the same city, now or in the future, a shared or joint custody arrangement would be possible. Obviously, since [Father] is in Laramie and [Mother] is in Casper, this is an infeasible solution. Therefore, each party has asserted the desire for primary custody with liberal and frequent visitation available to the other. Both parents have excellent relationships with their children. Both parents are fit and competent to provide adequate care, physically, emotionally, mentally, culturally, spiritually, and educationally, to these children. [Mother] cannot be "faulted" for geographically relocating to Casper, while [Father] cannot be "faulted" for staying in Laramie or opting not to move to Casper upon retirement. Both parties have indicated they plan to stay in their current locations. Both [Father] and [Mother] have exhibited good moral behavior and positive lifestyles crucial to the healthy upbringing of these children. [Father] had friends, family and day-care providers attest on his behalf. [Mother] likewise had family and child care providers testify as to her fitness as a person and a mother.
However, when considering the totality of the situation and the overall best interests for these children, the Court finds the children need stability which mimics the traditional parenting roles these parents have held in [the children's] lives rather than focusing on the physical location of the parties. [Mother] has been the "need" provider, [Father] has been the "wants" provider. Each has and can perform the other's role. However, the Court finds the best interests of these children would best be served by [Mother] continuing to be the primary caretaker during the week, while permitting [Father] the ability to continue offering all of the enhancements and opportunities for growth and happiness to the children which he has done in the past. While the Court is cognizant that each parent would prefer more time with their children than any separation will allow, the children's time is now best served in a fashion similar to that which the children are accustomed. [Emphasis in original.]
While [Father] has argued that his home in Laramie would better suit such a situation, the Court disagrees. Marce Nes-slinger, a licensed counselor, met with the children at the request of [Father]. Ms. Nesslinger testified either parent could adequately be the primary caretaker, so long as the children had a "home-base" for purpose of stability. She stated the physical building was not what comprised the "home base," but rather where the children felt comfortable, safe and nurtured and able to foster their relationships with both parents. The evidence indicated [Mother's] residence adequately furnishes the physical needs for the children. [The children] are well situated, aside from typical adjustments needed after visitations and travel occur. The children have become comfortable residing in Casper due in large part to [Mother's] diligence. The GAL, likewise, recommends such an arrangement.

[T21] The district court's decision letter is ten pages long. We are unable to discern in it a decision based solely on gender. Indeed, while to some extent described in gender-specific nouns, the district court is very clear that the roles he discusses are not peculiar to one sex or the other; rather, it is strictly a matter of function. The decision reached by the district court is not a violation of § 20-2-201(b). The district court relied upon objective criteria in reaching its decision and did not act arbitrarily or eapriciously. We have carefully reviewed the evidence in its entirety and, when we view that evi-denee in a light most favorable to Mother, we are compelled to sustain the district court's decision. The district court's findings are fully supported by the evidence, and the district court neither considered an impermissible factor, nor did it fail to consider any factor material to a resolution of this case.

Denial of Motion to Amend the Judgment (the Forty Percent Issue)

[122] Near the close of the trial, the district court made a fleeting reference to Wyo. Stat. Ann. § 20-2-304(c) (LexisNexis 2008). That statute provides:

(c) When each parent keeps the children overnight for more than forty percent (40%) of the year and both parents contribute substantially to the expenses of the children in addition to the payment of child support, a joint presumptive support obligation shall be determined by use of the tables. After the joint presumptive child support obligation is derived from column three of the tables, that amount shall be divided between the parents in proportion to the net income of each. The proportionate share of the total obligation of each parent shall then be multiplied by the percentage of time the children spend with the other parent to determine the theoretical support obligation owed to the other parent. The parent owing the greater amount of child support shall pay the difference between the two (2) amounts as the net child support obligation.

Based upon that fleeting reference, Father contends that the district court made a binding oral ruling that Father was entitled to visitation for at least 40% of the children's time. Continuing, Father contends that because the final decree does not allow him 40% of the children's time, the district court is duty bound to amend its judgment to conform to that oral pronouncement. Of course, the record is not clear what percentage of the time Father has spent, or will spend, with the children over the course of time. The decree is clear that Father's time with the children is to be as generous as possible, and Mother has pledged to make that happen to the extent it is feasible, consistent with cireumstances. In addition to being illogical, this argument is not supported by cogent argument or pertinent authority, and we will not consider it further. Odegard v. Odegard, 2003 WY 67, ¶ 31, 69 P.3d 917, ¶ 31 (Wyo.2003).

Is this Appeal without Merit

[128] W.R.A.P. 10.05 provides:

If the judgment or appealable order is affirmed in a civil case, appellee shall recover the cost for publication of the brief with the cost to be computed at the rate allowed by law for making the transcript of the evidence. If the court certifies there was no reasonable cause for the appeal, a reasonable amount for attorneys' fees and damages to the appellee shall be fixed by the appellate court and taxed as part of the costs in the case. The amount for attorneys' fees shall not be less than one hundred dollars ($100.00) nor more than five thousand dollars ($5,000.00). The amount for damages to the appellee shall not exceed two thousand dollars ($2,000.00).

[124] Sanctions under this rule are generally not available when the appeal challenges a discretionary ruling. We do not consider sanctions appropriate in this case. Dorsett v. Moore, 2003 WY 7, ¶¶ 13-14, 61 P.3d 1221, ¶¶ 13-14 (Wyo.2008);, Wood v. Wood, 964 P.2d 1259, 1268 (Wyo.1998).

CONCLUSION

[125] The district court did not err in denying the motion for mistrial. The district court's custody determination was not based solely upon gender and was not contrary to the evidence. The district court did not make an oral ruling that Father was entitled to at least 40% of the children's time. We decline to impose sanctions or award attorney's fees in this matter. The Decree of the district court is affirmed in all respects.

      . The district court's explicit instructions to and the thorough performance of the GAL were superlative in this case. See Pace v. Pace, 2001 WY 43, ¶¶ 21-26, 22 P.3d 861, ¶ 21-26 (Wyo.2001).

      . Although Mother and the GAL argue that the disputed evidence/information was admissible and was not confidential or privileged as contemplated by the governing statutes, we find it unnecessary to definitively address that issue. Moreover, this matter was not sufficiently developed by the parties below so as to allow for a definitive resolution. Clearly the better practice would have been for all parties and the mediator to fully comply with the mediation statutes and for any issues in that regard to be settled before the subject became a target of questioning.

       We will not pursue the academic inquiry as to what occurs (or what it means) if the court in a nonjury trial should declare a mistrial for his improper admission of evidence.

      . Father also contends that the district court erred in not granting a request for a hearing on the mistrial motion. We readily conclude that whether to hold a hearing is a maiter of discretion, and that discretion was not abused under these circumstances.

      . The initial report was appended to Father's pretrial memorandum. However, ultimately that report was not included in the record. That initial report was prepared prior to trial and before the GAL had the opportunity to hear all of the admissible evidence and observe the testimony of all witnesses.


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    Timothy J. CASEY and David L. Sinclair, Appellants, v. SEMCO ENERGY, INC., Appellee.
    No. S-10830.
    Supreme Court of Alaska.
    June 11, 2004.

      Bruce E. Gagnon and Jerome H. Juday, Atkinson, Conway & Gagnon, Anchorage, for Appellants.
    John C. MeCarron and Dani Crosby, Ash-burn & Mason, P.C., Anchorage, for Appel-lee.
    Before: FABE, Chief Justice, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Timothy Casey and David Sinclair appeal the superior court's decision that Semeo En'ergy, Inc. did not breach the covenant of good faith and fair dealing when its counsel decided that their inclusion in an early retirement program would jeopardize the program's tax-exempt status under federal law. They argue that the superior court should have construed their severance contracts to provide them other benefits of the early retirement program that were not affected by federal law. Because the superior court properly interpreted the contract, and because the covenant of good faith and fair dealing does not add duties to a contract, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

In November 1999 Appeliee Semco Energy, Inc. (Semeo) purchased ENSTAR Natural Gas Company. The next month Semeo terminated ENSTAR managers Timothy J. Casey and David L. Sinclair effective at the end of the year, despite its assurances, given during the negotiations for the sale, that it intended to retain ENSTAR's management. A condition of the sale was that the top management sign severance agreements, which they did in October 1999, providing for lump-sum severance payments and several months of health insurance coverage in the event of involuntary termination or voluntary termination following a significant change in duties. Two other managers, Richard Barnes and Thomas Waldock, left ENSTAR voluntarily in early December 1999 after their salaries were reduced.

The four departing managers later decided that the severance agreements were inadequate, and Barnes and Waldock began negotiating for additional benefits on their collective behalf. On December 15, 1999 the parties raised the possibility that Semeo would offer an early retirement program or plan (ERP), perhaps adding three or five years of age and service to an employee's existing benefit level, to encourage other ENSTAR employees to leave. Semco President Carl Porter said that if the ERP was offered he would "make it happen" for the four departing managers. A draft agreement to this effect dated December 16, 1999 provided that "[ilf SEMCO implements an Early Retirement Program on or before [date], Employee will be considered as having retired for purposes of that Early Retirement Plan. SEMCO makes no commitment to Employee that it will implement such a Plan." Waldock, an attorney, consulted an advisor who specialized in benefit plans who warned that applying any new ERP retroactively only to certain highly-compensated employees would probably disqualify the plan from tax-exempt eligibility under section 1051 of the Employee Retirement Income Security Act (ERISA). Wal-dock passed this concern along to Bud Madi-gan, an attorney and one of Semeo's primary negotiators on the issue.

Negotiations followed, and on January 14, 2000 the four managers signed settlement agreements under which they dropped all outstanding claims against Semco in exchange for large lump-sum severance payments, inclusion in the ENSTAR retiree medical program, and inclusion in the possible future ERP if the ERISA risk could be avoided. Specifically, paragraph II(D) of the settlement agreements provided:

If Semeo implements an Early Retirement Plan for the employees of the ENSTAR Natural Gas Division on or before June 80, 2001, Employee will, subject to the following provisions of this paragraph, be considered as having retired for purposes of that Early Retirement Plan. Employee will not be so considered if in SEMCO's sole judgment exercised in good fuith, based upon an opinion of SEMCO's counsel, the inclusion of the Employee in such an Early Retirement Plan would result in a risk that the ENSTAR Natural Gas Retirement Plan For Salaried Employees would no longer be a Qualified Plan under Section 401 of the Internal Revenue Code. SEM-CO makes no commitment to Employee that it will implement such an Early Retirement Plan.

(Emphasis added.) At the time that this paragraph was drafted, Waldock warned all the managers in an e-mail that "we will be included UNLESS in SEMCO's sole judgment our inclusion would jeopardize the ERISA qualification of the Plan. SEMCO will not offer any cash payment in lieu thereof. You can bet that SEMCO will be VERY conservative when it assesses the risk of Plan disqualification."

In July 2000 Semeo adopted an ERP consisting of a severance payment equal to nine months' pay, a twenty percent discount on co-payments for medical visits, and a pension plan enhanced by five years of age and five years of service. But Semeo did not include the four managers in the plan. Semco submitted the question of ERISA disqualification to its actuary, Ray Shapiro, and its counsel, Larry Gagnon, both of whom issued opinions stating that allowing the managers to participate would jeopardize the tax status of the plan under ERISA. Waldock called Madigan in late August 2000 to ask whether the managers would be eligible for just the severance pay and health insurance aspects of the ERP, since these benefits would not disqualify the pension program. Waldock asked whether the opinion had been issued on the assumption that the ERP would be offered only to the four managers in question, or whether it would still be discriminatory if offered to all otherwise eligible employees who had retired in the period prior to the ERP being officially offered. Madigan responded that he had only instructed his advisors to investigate the possibility of discrimination if the four managers were included. Madigan then asked Gagnon to research how many otherwise eligible employees had retired or left ENSTAR during the relevant period. Gagnon discovered that no such employees had left during the relevant period, and wrote another opinion in late September 2000 stating that even if the discrimination testing had taken all relevant employees into account, there would still have been the risk of disqualification of the ERP's ERISA status.

B. Proceedings

Casey and Sinclair filed suit in November 2000, alleging breach of contract, violation of the covenant of good faith and fair dealing, and misrepresentation. Trial was held on January 7-9, 2002 before Superior Court Judge John Reese. At trial, Casey and Sinclair presented the testimony of an expert, Norman Milks. Milks testified that Casey and Sinclair's inclusion in the ERP could indeed have created a risk of disqualification of the ERP's ERISA status, but that Semco could have provided Casey and Sinclair with the ERP benefits or their equivalent by creating a benefit plan that applied to any employee who retired at about the same time as the managers, by simply making lump-sum payments to Casey and Sinclair that were equivalent to the pension benefits, or by creating a "top hat" plan in which Casey and Sinclair would have received periodic cash payments equivalent to those under the ERP pension. Milks also testified that Semeo could have provided Casey and Sinclair with just the severance pay and medical co-payment aspects of the ERP without any risk to its ERISA status. Milks also testified that Semco could have eliminated the risk of ERISA disqualification by obtaining an opinion letter to that effect from the IRS.

The superior court denied all of Casey and Sinclair's claims. The court held that the settlement agreement only required Semeo to obtain a good faith opinion from its counsel about whether inclusion of Casey and Sinclair in the ERP might jeopardize its ERISA status, that Semeo had met this condition when Gagnon issued his opinion in good faith, and that any of Porter's statements that "we'll take care of it" were unclear and unenforceable in light of the settlement agreements' integration clauses. Casey and Sinclair appeal.

III. STANDARD OF REVIEW

We apply our independent judgment to questions of law, including contract interpretation, adopting the rule of law most persuasive in light of precedent, reason, and policy. We review a trial court's factual findings for clear error, which is found when we are left with a definite and firm conviction based on the entire record that a mistake has been made. Whether there has been a breach of the covenant of good faith and fair dealing is a question of fact, and is therefore reviewed only for clear error. It is the function of the superior court, rather than this court, to weigh conflicting evidence and assess the credibility of witnesses.

IV. DISCUSSION

Casey and Sinclair challenge the superior court's factual findings, its application of the covenant of good faith and fair dealing to the agreement, and its refusal to "fill the gap" by granting them two of the three benefits of the early retirement program. We reject each of these challenges.

A. - The Parties Did Not Intend the Settlement Agreements To Require Semco To Exhaust All Means of Including Casey and Sinclair in the Early Retirement Plan.

The goal of contractual interpretation is to give effect to the reasonable expectation of the parties. 'We consider disputed language in its context in the contract as a whole and look to the purposes of the contract, the cireumstances surrounding its formation, and the case law on similar contractual provisions. The parol evidence rule provides that an integrated contract (one that is intended to describe the entire agreement cannot be varied through the introduction of evidence about prior negotiations or agreements. However, extrinsic evidence is always admissible on the question of the meaning of the words of the contract itself. If the parties disagree about the interpretation of a provision, we inquire into what the parties knew or had reason to know of each other's position; a party prevails when he or she did not know or have reason to know that the other side interpreted the provision differently, but the other party did know or have reason to know of the disagreement. When a phrase in a contract is understood differently by the parties and is sufficiently ambiguous to support both meanings, no contract exists.

Casey and Sinclair contend that the true meaning of paragraph II(D) was that "Semco [could] avoid giving Casey and Sinclair the early retirement benefits only if there was a risk of ERISA disqualification that Semeo could not avoid by reasonable means." They argue that their interpretation is consistent with the purpose of the settlement agreements, which was to give them more benefits than they had obtained in the severance agreements. They also argue that their interpretation is consistent with Porter's statements that he would "make it happen" for them and Madigan's statements that he expected that Semeo would "find a way to put them in the plan if [it] could." In effect, they argue that the superior court should have weighed the testimonial evidence more heavily in their favor. We reject that argument.

-It is the role of the trial court, not the appellate court, to evaluate the credibility of the witnesses and to weigh the evidence. Although Sinclair testified that his understanding of "good faith" was that Semeo would have to make serious efforts to include him in the early retirement plan, he also suggested that his expectation that he would be included was based more on Carl Porter's statements, which he received second-hand, than on the words of the settlement agreement. In contrast, Madigan testified that the disputed language had been drafted at the last moment and that his intent was to "put them in the plan if we could do it without a risk to qualification," not to research alternative ways to approximate benefits similar to those in the plan if the risk of disqualification was determined to exist. The court found Madigan's testimony to be "eredible and convincing." There was ample evidence to support the superior court's decision to accept Semeo's rather than Casey and Sinclair's version of the facts.

Casey and Sinclair argue that the superior court's interpretation of the contract constitutes legal error because it violates the rule that contracts should be interpreted so as to give effect to all their provisions and to find all provisions meaningful to the extent that this is possible. They point out that a certain amount of ERISA risk had already been identified by the time that the final version of paragraph II(D) was drafted-indeed, this risk was the very reason why the paragraph was redrafted-and that conditioning their inclusion in the plan on a risk assessment by Semeo's counsel would be a redundant exercise, the outcome of which was almost certain. Thus, they claim, it is more reasonable to interpret paragraph II(D) as requiring Semco to find a way to include them. Semco argues that requiring it to find a way to include Casey and Sinclair by any reasonable means renders part of the text of paragraph II(D) meaningless. The central mystery of Casey and Sinclair's case is why they would agree to such a narrowly drawn provision, especially in light of their representative's warnings that "SEMCO will not offer any cash payment in lieu" of the plan and "[ylou can bet that SEMCO will be VERY conservative when it assesses the risk of Plan disqualification."

Nonetheless, "parties are free to make arrangements that seem unreasonable to others." The intent of the parties is the primary issue, and their intent can be drawn from extrinsic evidence, especially their express attempts to comply with the contract as they understood it. Based on the superior court's factual findings regarding the parties' intent in drafting the contractual language, and upon our reading of that language, we hold that paragraph II(D) required only that Semeo obtain its counsel's good faith opinion regarding ERISA disqualification.

B. The Covenant of Good Faith and Fair Dealing Did Not Require Sem-co To Find a Way To Include Casey and Sinclair in the Early Retirement Plan.

Casey and Sinclair argue that because the covenant of good faith and fair dealing requires a party to take reasonable steps to ensure the occurrence of a condition precedent to a contract, Semeo had to take reasonable steps to include them in the ERP. Because the covenant of good faith and fair dealing cannot add terms to a contract or prohibit what a contract explicitly permits, we reject Casey and Sinclair's claim that Semeo breached the covenant of good faith and fair dealing.

The covenant of good faith and fair dealing is implied in all contracts in Alaska. "[W]here a party has promised to attempt to satisfy a condition, the attempt must be made in good faith." A party must act in subjective good faith, meaning that it cannot act to deprive the other party of the explicit benefits of the contract, and in objective good faith, which consists of acting in a manner that a reasonable person would regard as fair." "Where a duty of one party is subject to the occurrence of a condition, the additional duty of good faith and fair dealing ... may require ... refraining from conduct that will prevent or hinder the occurrence of that condition or ... taking affirmative steps to cause its occurrence. But the purpose of the covenant is to effectuate the reasonable expectations of the parties, not add to them, and "cannot be interpreted to prohibit what is expressly permitted."

Casey and Sinclair rely on the doctrine that a party cannot be excused from contractual performance by the nonoccurrence of a condition over which that party has control. The Restatement (Second) of Contracts seetion 245 provides that "[where a party's breach by non-performance contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused." The classic case of a breach of the covenant of good faith and fair dealing regarding contractual conditions occurs when an obligation is conditioned on a party's ability to obtain financing or insurance, but the party fails to make reasonable efforts to obtain such financing or insurance. Where a condition is within the sole control of a single party, most authorities require that party to take "reasonable" steps to obtain the occurrence of the condition.The superior court found that Semco and its agents acted in good faith, both subjectively and objectively, in fulfilling Semeo's contractual obligations to Casey and Sinclair. It also found Casey and Sinclair's argument that Semeo could have included them in a separate retirement plan to be irrelevant because "neither the express language of the Settlement Agreements nor the implied good faith and fair dealing covenant require[s] Semeo to provide more than the parties bargained for."

Casey and Sinclair argue that taking reasonable steps to obtain the occurrence of the condition required Semeo to "consider[] ways to extend the benefits of the plan" to them. They argue that the superior court misunderstood the application of the covenant of good faith and fair dealing to their case, because the superior court read the settlement agreements as requiring Semeo only to submit the question of whether Casey and Sinclair's inclusion would create a risk of ERISA disqualification to counsel, and as requiring Semeo's counsel to consider the question in accordance with the law and without being arbitrary.

The superior court was correct in its interpretation of paragraph II(D) of the settlement agreements. "The covenant of good faith and fair dealing is implied in every contract in order to effectuate the reasonable expectations of the parties to the agreement, not to alter those expectations." The covenant of good faith and fair dealing "will not create a duty where one does not exist." The doctrine "does not provide courts with carte blanche to rewrite contracts and cannot be interpreted to permit what is expressly prohibited by the contract. While the text of paragraph II(D) promises Casey and Sinclair that they could be included in the ERP, it specifically disclaims any responsibility for Semeo to adopt an ERP, and further conditions their inclusion on Semeo's counsel not finding any potential risk to the ERP's ERISA qualification. The language is so carefully hedged that Semeo has very little responsibility at all; it must merely adopt a plan and submit it to counsel for an opinion. Moreover, the paragraph defines "implement[ing] an Early Retirement Plan" as "amend[ing] the ENSTAR Natural Gas Retirement Plan for Salaried Employees ... to provide enhanced benefits (such as increased years of service) which function as incentives to employees to accelerate termination of employment to a date preceding July 1, 2001." It would considerably increase Semeo's duties to require it to put forth all reasonable efforts to structure the plan so that these four employees may be included, or to put forth all reasonable efforts to provide benefits to these employees that are similar to but outside of the structure of the plan. Since Casey and Sinclair do not allege that Semco and its counsel reached their conclusion about ERISA disqualification in bad faitht-indeed, their own expert agreed that such a risk existed-wé uphold the superior court's conclusion that there was no breach of the covenant of good faith and fair dealing.

Casey and Sinclair also argue that Semeo breached the covenant of good faith and fair dealing by refusing to grant them the severance pay and medical benefit components of the ERP solely because they were ineligible for the pension aspect of the ERP. They argue that this violated the covenant as defined in Restatement section 205, which states that a breach of the covenant includes "abuse of power to specify terms." While Semeo could have provided those benefits, it was not required to do so under the settlement agreement. Therefore we affirm the holding of the superior court that Semeo did not breach the implied covenant of good faith and fair dealing.

C. The Superior Court Did Not Err in Declining To "Fill the Gap" in the Agreements by Requiring Semco To Give Casey and Sinclair Two of the Three Components of the Early Retirement Plan.

Finally, Casey and Sinclair argue that because the ERISA risk foreseen in paragraph II(D) affected only one of the three components of the ERP-the enhanced pension benefit adding five years of age and five years of service, but not the additional twenty percent of medical visit co-payments to be paid by the company or the nine months transitional pay in a lump sum-the parties had left a "gap" in the contract. Casey and Sinclair argue that the superior court should have filled this gap by implying a new term granting them the two remaining benefits of the ERP. Semco responds that "filling the gap" in this manner would be inappropriate because Semeo never would have agreed to the terms proposed by Casey and Sinclair.

A court may supply an essential term that has been omitted from an otherwise sufficiently defined contract. Because the parties cannot plan for all contingencies that might arise, a court may fill in gaps to ensure fairness where the reasonable expectations of the parties are clear." But based on the integration clauses in the settlement agreements and the superior court's findings regarding the parties' intent, we conclude that there were no contractual gaps to fill.

The threshold inquiry in determining whether this case is an appropriate one for "gap-filling" is whether, in fact, there is an essential term or cireumstance for which the parties failed to plan. Casey and Sinclair argue that their settlement agreements were "skeletal" ones in which the possibility of only one aspect of the plan causing a risk to ERISA qualification was never discussed or planned for, primarily since the content of the future Semeo ERP amendment was unknown at the time. But our reading of the contractual language and the superior court's factual finding regarding the intent of the parties lead us to conclude that Semeo was required under the contract only to obtain a good faith legal opinion from its counsel as to whether inclusion of Casey and Sinclair in the ERP would risk disqualification under ERISA. The settlement agreements were fully integrated: Both contain integration clauses that state, "[this is the entire Agreement between Employee and SEMCO. SEMCO has made no promises to Employee other than those in this agreement." We therefore reject Casey and Sinclair's argument that the superior court should have read new terms into the agreement in order to fill contractual gaps because we find that there were no gaps to fill.

v. CONCLUSION

Because the superior court did not err in its interpretation of the severance agreements, we AFFIRM.

MATTHEWS and EASTAUGH, Justices, not participating.

      . 29 U.S.CA. § 1051(2) (West 2003) (providing that tax exemption of employee pension plan under Employee Retirement Security Act shall not apply to "a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees"").

      . McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1012 (Alaska 2002).

      . Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 104 (Alaska 2001).

      . - Id. (internal citations omitted).

      . Vezey v. Green, 35 P.3d 14, 20 (Alaska 2001) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

      . Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1223 (Alaska 1992). If the case presents only undisputed facts, then the covenant of good faith and fair dealing can be reviewed de novo. Id.

      . Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 415 (Alaska 2001).

      . Exxon Corp. v. State, 40 P.3d 786, 793 (Alaska 2001).

      . Zuelsdorf v. Univ. of Alaska, Fairbanks, 794 P.2d 932, 934 (Alaska 1990).

      . Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d4 581, 583 (Alaska 1989).

      . Id. at 584 (citing Restatement (Secomp) or ConTracts § 214 cmt. b (1981)).

      . Id. at 584 n. 3 (quoting RestaremEnt (Seconp) or Contracts § 214 cmt. b).

      . - Restatement (SEcowmp) or Contracts § 201(2).

      . Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 416 (Alaska 2001).

      . Id.

      . See, eg., Grant v. Anchorage Police Dep't, 20 P.3d 553, 556 (Alaska 2001); Peterson v. Wirum, 625 P.2d 866, 872 n. 11 (Alaska 1981).

      . See Grant, 20 P.3d at 556.

      . Restatement (SEconp) or Contracts § 203 ermt. c.

      . Sprucewood Inv. Corp. v. Alaska Hous. Fin. Corp., 33 P.3d 1156, 1162 (Alaska 2001).

      . Ellingstad v. State, Dep't of Natural Res., 979 P.2d 1000, 1009 (Alaska 1999).

      . - Gordon v. Foster, Garner & Williams, 785 P.2d 1196, 1199 (Alaska 1990).

      . Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997).

      . Gordon, 785 P.2d at 1199 n. 6 (quoting Restatement (SEcomp) or Contracts § 245 cmt. a).

      . Era Aviation, Inc. v. Seekins, 973 P.2d 1137, 1141 (Alaska 1999).

      . Ramsey, 936 P.2d at 133.

      . Quoted in Gordon, 785 P.2d at 1199 n. 6, and Klondike Ind. Corp. v. Gibson, 741 P.2d 1161, 1167 (Alaska 1987).

      . Eg., Cauff, Lippman & Co. v. Apogee Fin. Group, Inc., 807 F.Supp. 1007, 1022-24 (S.D.N.Y.1992) (finding breach of covenant of good faith and fair dealing where party refused to proceed with certain meetings and finance agreements so as to obtain financing for contract); Gordon, 785 P.2d at 1199-1200 & n. 8 (remanding to find whether intent of parties required party to attempt to obtain insurance, or actually required insurance itself).

      . Dayan v. McDonald's Corp., 125 Ill.App.3d 972, 81 Ill.Dec. 156, 466 N.E.2d 958, 972 (1984); Jorn Epwarp Murray, Jr, Murray on Contracts § 111(B), at 622-23 (3d ed.1990).

      . Ramsey, 936 P.2d at 133 (internal citation omitted).

      . Lorenz v. CSX Corp. 736 F.Supp. 650, 656 (W.D.Pa.1990).

      . Id.

      . Ramsey, 936 P.2d at 133.

      . - Restatement (Seconp) or Contracts § 205 cmt. d (1981).

      . Id. at§ 204.

      . Magill v. Nelbro Packing Co., 43 P.3d 140, 142 (Alaska 2001). .


author: FABE, Justice.

text:
    Clara Dorothy GLOVER and Robert Douglass, Appellants, v. William Bruce GLOVER, Lucy Loy, Lona Stallsworth, Eleanor Buchanon, Lilly Beckett, Eva McCoy, George McCoy, Jr., and Carl Snyder, Sr., Appellees.
    No. S-10848.
    Supreme Court of Alaska.
    June 11, 2004.

      Steven S. Tervooren, Hughes Thorsness Powell Huddleston & Bauman LLC, Anchorage, for Appellants.
    Russell LaVigne, Jr., Alaska Legal Services Corporation, Kotzebue, for Appellee Carli Snyder, Sr.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

FABE, Justice.

I. INTRODUCTION

In this quiet title action, the superior court found that Carl Snyder, Sr. held unrecorded title to a piece of property in Kotzebue that he and his family had lived on for close to fifty years. At trial Clara Glover and Robert Douglass claimed that Snyder held the property only as a lessee. Snyder maintained that his father and predecessor in interest, Dan Snyder, Sr., had gained title by adverse possession. Relying on a theory that neither party presented, the court found that the elder Snyder had gained title by adverse possession because the property changed hands, apparently inadvertently, for ten years. During this period, the court reasoned, Snyder met the requirements for adverse possession and took unrecorded title. We remand the case to the superior court so that it may conduct further factfinding and apply the proper test for determining whether and when a party's occupation of land meets the adverse possession requirements.

II. FACTS AND PROCEEDINGS

A. - Factual History

Charting the course of this adverse possession controversy requires tracing the complex chain of title of two parcels of land in Kotzebue. They began as a single lot (Lot 9, Block 7, Tract A, Townsite of Kotzebue, U.S. Survey #2863 A & B) that was owned by Mary Johnson in the early 1950s.

We attach as an appendix for ease of understanding an as-built survey of Lot 9 showing its partition into two lots and the strue-tures that existed on it as of 1977. Lot 9 ran about 126 feet north to south and approximately 160 feet east to west. Lot 9 fronted on two streets, Shore Avenue on the west and Kotzebue Way on the east, with 126 feet of frontage on each street. Eventually Lot 9 was divided into two parcels. The southerly parcel, having forty-six feet of frontage on each street, is the parcel with which we are primarily concerned. We refer to it in this opinion as the parties did below as the "sub-jeet lot."

Lot 9 was conveyed to Eva Glover, Mary Johnson's daughter, in 1956. In 1965 Eva CHover's successor in interest, Billy Glover, sold a portion of Lot 9 to Rotman Stores, Inc. According to the 1965 deed from Billy (Hover to Rotman Stores, the parcel conveyed was the southerly eighty feet of Lot 9. Rotman Stores, in turn, sold the same parcel to Lawrence and Barbara Maxson on March 5, 1969. On May 19, 1975, the Maxsons by quitclaim deed transferred the subject lot-the southerly forty-six feet of Lot 9-back to Billy Glover. The quitclaim deed relates that this transaction was "for and in consideration of the exchange of a quitclaim deed for the northerly 80 feet of Lot 9." The record reflects that Billy Clover executed and delivered a deed to the northerly eighty feet of Lot 9 to the Maxsons on the same date that similarly recites that it is in exchange for the deed to the southerly forty-six feet. With the exchange of the quitclaim deeds in May of 1975, Billy Glover owned the subject lot, which had assumed its present shape as shown in the appendix.

The appellants assert that what Billy Glover intended when he first sold part of Lot 9 to Rotman Stores was to sell the northerly portion and that the reference to the southerly portion in the 1965 deed was a mistake. The exchange of the quitclaim deeds and the placement of several buildings on the property may support this claim.

On August 4, 1975, Billy Hover leased his interest in Lot 9 to NANA Housing Authority for twenty-five years subject to an automatic renewal of twenty-five years to aid in the construction of a HUD home. A HUD home was built in 1977 on the subject lot. It is marked "new home" on the as-built survey. When the HUD home was completed Billy Glover and his family moved from the structure marked "B" on the as-built survey into the new home.

In 1953 or 1954, when Mary Johnson still owned Lot 9, Dan Snyder, Sr., built a house on it. The house is marked "A" on the as-built survey. In exchange for permission to live there, Dan Snyder, Sr. agreed to supply Johnson with game and other food. The superior court declined to find whether the arrangement was a lease or a sale. This gap in the findings is not challenged by either party. Dan Snyder, Sr. died in 1991 and his son, Carl Snyder, Sr. (Snyder) succeeded to his interest in the property. At various times, the Snyder family built a shed and an addition onto the house and for a period kept dogs on the property.

In 1994 appellant Clara Glover, Billy's daughter, prepared a written lease to formalize Snyder's occupancy; it was signed but Snyder denies its validity, claiming that his daughter signed it without his authorization. The superior court resolved the factual conflict by crediting Snyder's testimony, and the appellants do not contest the finding on appeal.

B. Procedural History

Clara Glover and Robert Douglass brought this quiet title action to clear the way for Glover to sell the subject lot to Douglass. Most of the original defendants were members of Glover's family who had a claim on the property through an administrator's deed, making them tenants in common following Billy Glover's death. Douglass and Glover settled with the relatives, leaving only the claim of Carl Snyder. Snyder angwered the quiet title complaint by asserting as an affirmative defense that he held title to the land under his house and the shed his family built through adverse possession. - Glover and Douglass moved for summary judgment. In response, Snyder asserted that his father had purchased the land from Mary Johnson, but did not rest his opposition to summary judgment on his claim of ownership. Instead, he argued that his father acquired title through adverse possession, independent of the agreement between his father and Mary Johnson. After the summary judgment motion was denied, a bench trial was held in June 2002.

The superior court first found that the agreement between Dan Snyder, Sr. and Mary Johnson rendered the Snyders' occupancy of the land permissive. Snyder therefore could not establish that his father gained title through adverse possession against Johnson or her successors. Although neither party argued the theory, the trial court went on to find that because Dan Snyder, Sr. had no similar agreement with Rotman Stores or the Maxsons, the permissive nature of the occupancy disappeared once Billy Glover sold the half of the parcel containing the Snyder house. Snyder's occupancy became hostile, fulfilling the key requirement for establishing a claim of adverse possession. Ten years, the period required to obtain title by adverse possession under AS 09.10.0830, passed between the transfer to Rotman Stores and the Maxsons' quitclaim deed returning the parcel to Billy Glover. The superior court therefore held that before the Glovers re-took record ownership of the parcel, Dan Snyder, Sr. had obtained unrecorded title to the portion that he occupied. Carl Snyder succeeded to this title on Dan's death. Glover and Douglass moved for amendment of findings and judgment or for a new trial, but the motion was denied. This appeal followed.

III. STANDARD OF REVIEW

The trial court's findings of fact are reviewed for clear error and are rejected "only if we are left with the definite and firm conviction on the entire record that a mistake has been committed." This court reviews the trial court's conclusions of law using its independent judgment and adopts "the rule of law that is most persuasive in light of precedent, reason, and policy."

Although they directly challenge the superior court's finding that Rotman Stores and the Maxsons owned the parcel under Snyder's house, the essence of Glover and Douglass's appeal is that the court erred in its conclusion that Dan Snyder, Sr.'s possession was hostile rather than permissive. We review the factual findings supporting this conclusion for clear error; the question of whether the facts as found by the superior court add up to hostility is a question of law to be reviewed with independent judgment.

The superior court's decision to admit evidence is reviewed for abuse of discretion; reversal is warranted only when the reviewing court is "left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling."

IV. DISCUSSION

A. The Superior Court's Findings Are Insufficient To Determine Whether Snyder or His Predecessor Acquired Title Through Adverse Possession.

Snyder claims that his father gained title through adverse possession under the previous version of AS 09.10.0380, which was in effect at the pertinent times. It stated:

A person may not bring an action for the recovery of real property, or for the recovery of the possession of it unless the action is commenced within 10 years. An action may not be maintained for the recovery unless it appears that the plaintiff, an ancestor, a predecessor, or the grantor of the plaintiff was seized or possessed of the premises in question within 10 years before the commencement of the action.[]

"In order to acquire title by adverse possession, [Snyder] must prove, by clear and convincing evidence, ... that for the statutory period his [father's] use of the land was continuous, open and notorious, exclusive and hostile to the true owner." Glover and Douglass primarily argue that Dan Snyder, Sr.'s possession of the parcel was not hostile to Glover's interest. They do not directly contest the other requirements.

Hostile possession does not imply that the adverse possessor bore ill will or aggression toward the true owner; it only means that the adverse possessor held the land in such a way that his interest in the property was incompatible with the record owner's interest. If the adverse possessor holds the land as a tenant or otherwise with the record owner's permission, his claim "is subordinate to the title of the true owner" and is therefore not hostile. If the adverse possessor, without the true owner's permission, "acted toward the land as if he owned it," then his claim is hostile. "When one assumes possession of another's property, there is a presumption that he does so with the rightful owner's permission and in subordination to his title. The adverse claimant thus bears the burden of proving that his claim is hostile.

The superior court found that Dan Snyder, Sr. took possession of the land with Mary Johnson's permission. The court specifically declined to find whether the permissive arrangement was a sale or a lease. Snyder does not claim on appeal that he acquired title to the property by purchasing it from Mary Johnson, nor does he rely on the possibility that the transaction was a sale to bolster his adverse possession claim. For the purposes of this decision, we therefore interpret the arrangement as a lease, with the food he delivered serving as rent. The superior court went on to hold that the transfer of the property to Rotman Stores eliminated the permissive nature of his occupation because the new owner was not a party to the agreement that created it in the first place. But when possession begins with the true owner's permission, it cannot become hostile unless the presumption of permission "is rebutted 'by proof of a distinct and positive assertion of a right hostile to the owner of the property' And a transfer does not alter the burden on the claimant or the standard he must meet. To show that his permissive occupation turned hostile, Snyder must prove that he made a distinct and positive assertion of his claim, regardless of whether the transfer to Rotman Stores was legitimate or was, as Glover and Douglass argue, a mistake that should be disregarded.

Similarly, the fact that no rent was paid after 1982, at the latest, cannot defeat the permissive nature of the Snyder family's possession. Nonpayment of rent does not establish hostility. The passive failure to make payments is not a "distinct and positive assertion" of ownership. If nonpayment terminated the lease, it only turned Snyder's interest in the land into a tenancy at sufferance. "An estate at sufferance is an interest in land which exists when a person who had a possessory interest in land by virtue of an effective conveyance, wrongfully continues in the possession of the land after the termination of such interest, but without asserting a claim to a superior title." A tenancy at sufferance is a permissive interest and cannot be the basis for adverse possession. Furthermore, we decline to establish a rule that gives tenants an incentive to stop paying rent in the hope of establishing an adverse possession claim.

To become an adverse possessor, any tenant, including a tenant at sufferance, "must openly and explicitly disclaim and disavow any and all holding under his former landlord; and, furthermore, he must unreservedly and steadily assert that he himself is the owner of the true title." This repudiation-a form of the distinct and positive assertion required to turn any permissive occupancy into a hostile one-must provide at least constructive notice to the landlord and true owner that the tenant has repudiated his leasehold interest and claims the land as his own.

Some courts require only that the adverse claimant meet the usual requirements for adverse possession-as long as the claimant occupies the land openly and notoriously and acts as if he owns it, repudiation of the owner's superior claim may be inferred. Other courts, generally reasoning in the analogous context of a tenant in common making an adverse claim against his co-tenant, have held that "a tenant ... does not, merely by exclusive possession, gain title by adverse possession." Instead, "stronger evidence is required to prove such adverse possession than, in similar claims by strangers to the title." We adopt this view. Our case law makes clear that when a claimant started out occupying land permissively, it is essential that his new, hostile interest in the property be made clear to the true owner. The behavior of a tenant and an owner will often be indistinguishable; if a tenant merely acts as he always did, the owner will not be on notice of his new, hostile claim. In almost every case, only a distinct and positive assertion of the new claim-or a repudiation of the owner's interest-will provide proper notice.

An adverse claimant who entered land as a tenant must usually show some distinct act, like an open announcement of his claim or a change in his use of the land, sufficient to serve as a distinct and positive assertion of his claim to own the property. This is more than is required of other adverse possessors, who may establish a claim simply by acting toward the land as if they owned it, without a particular assertion. Some cases, however, may require an exception to this heightened requirement. While "[nJot every undisturbed occupancy by a [former tenant] will result in a finding of ownership by adverse possession[,] ... when the acts of ownership are overt and unambiguous" and the exclusive possession is long held, a factfinder may infer that the tenant has repudiated his landlord's claim of ownership and asserted his own. The long occupation, with its unambiguous hallmarks of ownership, serves as the distinct and positive assertion of the claimant's interest and the repudiation of the true owner's interest.

For example, in Adams v. Johnson, the Supreme Court of Minnesota faced a claim by a joint tenant that he had gained full title to a piece of property, divesting his co-tenant of any interest. In general, establishing an adverse possession claim against a co-tenant requires the ouster of the co-tenant by the same sort of act required for the repudiation of a landlord's interest. The claimant and his predecessor in interest had occupied the land "for almost 50 years as sole owners, paying all taxes and insurance and retaining all profits." They had also made many improvements to the property, putting up farm buildings and a house, and repairing fences. Each of these acts was within their rights as tenants in common and could not on its own oust the co-tenant. But taken together, over the course of a half-century occupation whose character was fully understood by the co-tenant, they added up to an ouster. It is important to note that such cases are "rare" and "extreme." But the Minnesota case shows that this exception is important, as it preserves the possibility that those claimants who look the most like adverse possessors may acquire title When former tenants who have spent undisturbed years acting as if they owned their land or home face a sudden, surprising challenge to their rights, equity demands that courts closely consider whether they have gained title through adverse possession, even without the overt act usually required.

The superior court's findings suggest that Snyder or his father may have made a distinct and positive assertion of their claim to the land, and a repudiation of the interest of Mary Johnson and her successors. The superior court found that Snyder built an addition onto the house, that his father kept dogs on the property, and that a fence was built "[alt some time." If the fence, addition, or dog yard were beyond what Dan Snyder, Sr.'s agreement with Mary Johnson allowed, one or all of them may have demonstrated the family's repudiation of her sue-cessors' ownership of the land.

Snyder may have made a repudiation by words or conduct aimed directly at the true owner. The question of the legitimacy of the transfer to Rotman Stores would then become important because this type of repudiation could only be effective if it were made to the true owner. Alternatively, the repudiation may have been communicated to the community at large, as with an overt change in the use of the land. In this case, the identity of the true owner would not matter, because any record owner would be deemed to be on notice of it." A third possibility is that the Snyders' occupation may have been long enough and their acts of ownership overt and unambiguous enough that the court could infer from their exclusive possession over the years that the family was repudiating the true owner's interest. In this scenario, the identity of the true owner would be similarly immaterial. We therefore remand the case to the superior court for the necessary findings. That court, at its disceretion, may choose to review the existing ree-ord in light of these principles, or it may decide to take new evidence before making its determination.

B. The Superior Court Properly Admitted the Testimony of Art Fields.

On remand, the superior court may again be faced with the question of whether to consider the testimony of Art Fields. Fields testified to the conversation between Mary Johnson and Dan Snyder in which they agreed that Snyder would live on Johnson's land and in exchange he would supply her with food. Glover and Douglass argue that the testimony should have been excluded both under 'Alaska Evidence Rule 602, which requires a lay witness to "have] personal knowledge of the matter" testified to, and as inadmissible hearsay under Rules 801 and 802.

Fields testified that he was present for the conversation between Johnson and Dan Snyder:

THE COURT: Was Dan with you when ... you talked with Mary and you said I'll give you 110 [dollars] for half of the lot?
A: Yeah, and-and she said I'm going to give my other half to him for Native grub and stuff as long as he keep[s] supporting me....
Q: And do you believe that was exactly what she said?
A: Yeah.

Rule 602 requires only minimal evidence of a witness's personal knowledge. Given the wide discretion accorded trial courts in their admissibility decisions, we hold that the superior court did not abuse its discretion in holding that this testimony was sufficient to establish Fields's personal knowledge under Rule 602.

Fields recounted the conversation that he had with Dan Snyder, Sr. and Mary Johnson at several other points in his testimony. In addition to the passage reproduced above, the key testimony is:

[TJhis old lady, Mary Johnson ... came over and I-and Dan and I were there, Dan Snyder, and she said if you get me Native grub and take care of me for like caribou meat, reindeer meat, rabbits, anything, seal meat, I'll give you half of that property, and she sold half of it to me and gave the other to Dan Snyder.

Glover and Douglass assert, without much elaboration, that this is hearsay and inadmissible. Under Alaska Rules of Evidence 801 and 802, evidence is inadmissible hearsay if it is a statement made out of court and introduced "to prove the truth of the matter asserted." Fields's recounting of the conversation between Mary Johnson and Dan Suyder, Sr. is not excluded by the hearsay rule because it is not offered to prove the truth of the matter. The testimony is not relevant to prove that Johnson or Dan Snyder, Sr. actually intended to follow through on their promises, nor whether they performed them. It is relevant to prove that they said they would perform and therefore entered an agreement. Evidence of an oral agreement is not offered to prove the truth of the matter stated. Rather, such evidence is offered simply to show that the statement was made." "If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay." Fields's testimony was not hearsay and therefore properly admitted.

v. CONCLUSION

Snyder may hold unrecorded title to the property in Kotzebue. If he or his predecessor repudiated the true owner's interest in the property through a distinct and positive assertion of their own claim of ownership or through a long and unambiguous occupation of the property, then the initially permissive possession became hostile. If he did so in time to fulfill the other requirements of adverse possession, then he has gained title through adverse possession. We REMAND the case to the superior court to review the record, including the testimony of Art Fields, and conduct further factfinding, if necessary, in order to determine whether such a repudiation occurred.

      . The lot lines are not perfectly aligned with the points of the compass. The lines identified here as north-south actually run northeast-southwest. For clarity in the complicated history of the lot, we will refer to boundaries as if they matched the cardinal directions.

      . The evidence of mistake is not well developed. This may be because the trial court adopted a theory not argued at trial that was based on the validity of the 1965 transaction. See infra page 391.

      . The Housing Authority lease was terminated in July 1987 when the Housing Authority quit claimed its interest to Clara Glover.

      . Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001) (quotation marks and citations omitted).

      . Id. at 20 (quotation marks and citations omitted).

      . Cf. J.S. v. State, 50 P.3d 388, 391 (Alaska 2002) ("Whether the factual findings are sufficient to satisfy the [CINA] rules is a question of law that we will review de novo.").

      . Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994) (quotation marks and citation omitted).

      . Alaska's other adverse possession statute, AS 09.45.052, applies only to possession under "col- or and claim of title," a claim Snyder does not press.

      . Nome 2000 v. Fagerstrom, 799 P.2d 304, 309 (Alaska 1990) (quoting Smith v. Krebs, 768 P.2d 124, 125 (Alaska 1989)); see also Vezey, 35 P.3d at 20.

      . See Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 832 (Alaska 1974); Chaplin v. Sanders, 100 Wash.2d 853, 676 P.2d 431, 434 (1984) ('Hostility ... does not import enmity or ill-will, but rather imports that the claimant is in possession as owner, in contradistinetion to holding in recognition of or subordination to the true owner.") (quotation marks omitted).

      . See City of Anchorage v. Nesbett, 530 P.2d 1324, 1328 (Alaska 1975).

      . Smith, 768 P.2d at 126.

      . Ayers v. Day & Night Fuel Co., 451 P.2d 579, 581 (Alaska 1969).

      . Nesbett, 530 P.2d at 1328-29 (quoting Ayers v. Day & Night Fuel Co., 451 P.2d 579, 581 (Alaska 1969)); see also Hamerly v. Denton, 359 P.2d 121, 126 (Alaska 1961); Jackson v. Eichenberger, 189 Neb. 777, 205 N.W.2d 349, 351 (1973); 10 Thompson on Real Property § 87.10, at 137 (David E. Thomas, ed., 2d ed.1998) (""If possession is permissive in the beginning, it can be changed to one of hostility only by the most unequivocal conduct on the part of the adverse claimant."); see also id. at n. 331 (listing cases).

      . Nesbett, 530 P.2d at 1330 ("[The question of whether the use after conveyance was permissive or adverse is a question of fact on which [the adverse claimant] had the burden of proof.").

      . Id. (after conveyance, claimant must show "a distinct and positive assertion of a right hostile to . the owner") (quoting Scheller v. Pierce County, 55 Wash. 298, 104 P. 277 (1909)).

      . Although Glover and Douglass are not technically seeking reformation of the Rotman Stores deed, their argument is closely analogous. Reformation "corrects the language [of a deed] so that it reads as it should have read all along." 14 A. Powstt on Rear Prorerty § 81A.07[3l[al (Michael Allan Wolf ed., 1999). By arguing that Rotman Stores and the Maxsons never owned the subject lot, Glover and Douglass ask the court to act as if Billy Glover sold Rot-man Stores the northerly lot in the first place, rather than making the sale that the deed reflects. In other words, they want the deed from Glover to Rotman Stores to read as it should have read all along. A party seeking to reform a deed must prove the basis for reformation "by clear and convincing evidence." Voss v. Brooks, 907 P.2d 465, 468 (Alaska 1995). In the present situation, however, where the parties to the original transaction and their successors do not object to a change based on a mutual mistake and there is no evidence that any third party relied on the original deed, the heightened standard of proof is unnecessary.

      . Jackson, 205 NW.2d at 351; Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890, 892 (1957); Jones v. Skannal, 368 So.2d 774, 777 (La.App.1979); accord Stepp v. Stepp, 195 Ga. 595, 25 S.E.2d 6 (1943); Ehrman v. Mayer, 57 Md. 612, at 623 (1882) ("[When the relation of landlord and tenant has been created, the possession of the tenant is consistent with the title of the landlord, and the mere non-demand and nonpayment of rent, are not sufficient to bar the landlord's title...."); Camp v. Camp, 5 Conn. 291, at 301 (1824) (''The person once a tenant, so long as he remains in the occupation of the land demised, must be deemed to continue in that character. ...").

      . Interior Energy Corp. v. Alaska Statebank, 771 P.2d 1352, 1357 (Alaska 1989) (citing Restate MENT or tae Law or Property § 22, at 53 (1936)).

      . - In fact, "[alt common law 'a tenancy at sufferance was ... a device to prevent the creation and running of adverse possession by the tenant holding over." Kilbourne v. Forester, 464 SW.2d 770, 776 (Mo.App.1970).

      . Accord Camp, at 301 (''The rule is founded in sound policy, because it tends to encourage honesty and good faith between landlord and tenant; and is intended to give the former a security, which, otherwise, would be infinitely endangered.") (citation omitted).

      . Nessley v. Ladd, 29 Or. 354, 45 P. 904, 908 (1896).

      . See Estate of Wells v. Estate of Smith, 576 A.2d 707, 710 (D.C.1990) - Woodrow v. Henderson, 783 S.W.2d 281, 285 (Tex.App.1989) ("Acts which are inconsistent with ownership by the record owner of the property may be sufficient to put the record owner on notice that the tenancy has been repudiated."); McCall v. Hyde, 39 Or.App. 531, 592 P.2d 1064, 1066 (1979). But see Shepherd v. Lyle, 395 P.2d 641, 644 (Okla.1964) ("[Nlothing short of an explicit disclaimer of such a relation and a notorious assertion of right in himself will be sufficient to change the character of his [formerly permissive] possession.").

      . E.g., Tes-Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex.1976) ("It is held that repudiation of the claim of a co-tenant and notice thereof may be . shown by circumstances and that a jury may infer such facts from long continued possession of the land under claim of ownership and non-assertion of claim by the owners.") (citation omitted); Reid v. Wilkerson, 222 Ga. 282, 149 S.E.2d 700, 704 (1966). Others are more stringent in the other direction, holding that only a tenant who abandons the property and re-enters has asserted a claim hostile to the true owner's. E.g., Arndt v. Ball, 335 Mich. 595, 56 NW.2d 394, 396 (1953).

      . Johns v. Scobie, 12 Cal.2d 618, 86 P.2d 820, 823 (1939); see also Ransom v. Bebernitz, 172 Vt. 423, 782 A.2d 1155, 1162 (2001).

      . City of Providence v. Devine, 58 R.I. 204, 192 A. 212, 214 (1937); see also Hunter v. Schultz, 240 Cal. App.2d 24, 49 Cal.Rptr. 315, 318 (1966).

      . Nesbett, 530 P.2d at 1330.

      . See, eg., Johns, 86 P.2d at 823 (noting that tenant in common's construction of a house on disputed property may have been sufficient to oust co-tenants).

      . Adams v. Johnson, 271 Minn. 439, 136 N.W.2d 78, 82 (1965).

      . See, e.g., id.; Watson v. Little, 224. S.C. 359, 79 S.E.2d 384, 387 (1953); Camp, 5 Conn at 300-03 (citing Fishar v. Prosser, Cowp. 217, 98 Eng. Rep. 1052 (K.B.1774) (Mansfield, L.)).

      . 271 Minn. 439, 136 N.W.2d 78 (1965).

      . Id. at 81.

      . Id.

      . Id. at 80.

      . Id. at 81-82.

      . Watson, 79 S.E.2d at 387.

      . - "[What a duly alert owner would have known the owner is charged with knowing." Alaska Nat'l Bank v. Linck, 559 P.2d 1049, 1053 (Alaska 1977) (quotation marks omitted).

      . Alaska R. Evid. 602.

      . L.C.H. v. T.S., 28 P.3d 915, 921 (Alaska 2001); see also Commentary to Alaska R. Evid. 602 ("As long as there is some evidence that the witness has personal knowledge, the court must let the [{actfinder] decide whether or not the witness is really knowledgeable.").

      . Buster, 866 P.2d at 841 n. 9.

      . Alaska R. Evid. 801(c).

      . Cf. Shimer v. Foley, Hoag & Eliot LLP, 59 Mass.App.Ct. 302, 795 N.E.2d 599, 603-06 (2003).

      . West Coast Truck Lines, Inc. v. Arcata Community Recycling Center, Inc., 846 F.2d 1239, 1246 n. 5 (9th Cir.1988); see also United States Fidelity & Guar. Co. v. Davis, 3 Ariz.App. 259, 413 P.2d 590, 592 (1966); Shimer, 795 N.E.2d at 603-06; Island Directory Co., Inc. v. Iva's Kinimaka Enters., Inc., 10 Haw.App. 15, 859 P.2d 935, 939-40 (1993); 6 Joun Henry Wicmore, Evipence In Triars ar Common Law § 1770, at 259 (James H. Chad-bourne rev., 4th ed. 1976) ("'Where the utterance of specific words is itself a part of the details of the issue under the substantive law and pleadings, their utterances may be proved without violation of the hearsay rule. .. .").

      . Commentary to Alaska R. Evid 801(c).