author: JERRY L. GOODMAN, Presiding Judge: RAPP, J.,

text:
    2003 OK CIV APP 90
    James H. BEALE, Plaintiff/Appellee, v. Linda D. BEALE, Defendant/Appellant.
    No. 97,222.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Sept. 30, 2003.

      Lawrence D. Taylor, Tulsa, OK, for Plaintiff/ Appellee.
    Wendell W. Clark, Clark & Williams, Tulsa, OK, for Defendant/Appellant.
   Opinion on Rehearing by

JERRY L. GOODMAN, Presiding Judge:

1 1 Linda D. Beale (Wife) appeals from the trial court's December 28, 2001, order dividing the marital estate after her divorce from appellee James H. Beale (Husband). Based upon our review of the facts and applicable law, we affirm in part, reverse in part, and remand with directions.

FACTS

T2 Husband and Wife were married July 11, 1997. It was his third marriage and her second. There were no children born of this marriage. The parties had no antenuptial agreement. Wife was a nurse who stopped working because of a back injury after she was married. Husband held substantial premarital assets in his name, earned from his homebuilding company.

3 Beginning in September 1997, and continuing through 1999, Husband added Wife's name to certain of his premarital banking and investment accounts, which prior to the marriage had been held in his name only. Husband also opened several new accounts in both names, and purchased a certificate of deposit in both names. Though not at issue, Husband also created a trust, naming Wife as beneficiary, which he later rescinded. According to Husband's testimony and the testimony of Husband's banker, placing Wife's name on the accounts was done to protect Wife in the event of Husband's death. Husband admitted to being estranged from his adult children when he made these changes. Husband later reconciled with his children, filed for divorce, and removed Wife's name from the accounts. Husband admitted Wife did not coerce or influence him to add her name to his accounts. He did so voluntarily "in case something happened to me" Wife would be "covered." According to Wife, on at least one occasion, Husband presented her with a signature card, which she signed. The card represented an account which Husband told her was "our money" and it belonged "to both of us." Wife stated that Husband kept all of the account information at his office, and handled all the financial transactions. Wife admitted that until the divorce was filed, she was unaware her name was on some of the accounts.

14 Husband filed for divorce January 8, 2000. The parties stipulated as to all issues except the division of marital assets. The trial court issued a decree of divorce June 8, 2001, reserving the issue of property division. Further agreements were reached about most of the property, leaving only at issue the ownership of certain specified bank accounts which had at one time been held in the names of both Husband and Wife. The trial court held a hearing on the matter June 8 and 28, 2001. The issue before the trial court was whether Husband gave a portion of his assets to Wife, or whether those assets, once held in both names, nevertheless remained Husband's separate property. The trial court held that Husband did not make a gift to Wife of the contested assets and, in an order filed December 28, 2001, awarded all of the contested assets to Husband. Wife appeals.

ISSUES

5 Though set out in four separate propositions of error, Wife's appeal centers on one issue: whether Husband conveyed a portion of his assets to Wife as a gift by operation of law, thus enabling her to claim that portion of the marital estate as hers.

STANDARD OF REVIEW

§6 A trial court's division of marital property is of equitable cognizance and will not be disturbed unless found to be clearly contrary to the weight of the evidence and thus an abuse of discretion. Carpenter v. Carpenter, 1982 OK 38, 645 P.2d 476. We will review the record to determine if the findings of the trial court are supported by the evidence. Forristall v. Forristall, 1992 OK CIV APP 64, 831 P.2d 1017. We will indulge in the presumption the trial court's equity-based decision was correct and affirm the order. Hillcrest Med. Cir. v. State ex rel. Dept. of Corrections, 1988 OK 101, 675 P.2d 432. The complaining party has the burden to show the trial court abused its discretion in dividing the marital estate. Martin v. Martin, 1952 OK 52, 240 P.2d 1057. The marital estate need not be divided equally, but merely equitably. Silverstein v. Silverstein, 1987 OK CIV APP 87, 748 P.2d 1004. Even if the trial court has before it conflicting evidence regarding the number, value, possession, and disposition of contested items of property, we will defer to the trial court's judgment, absent clearly contrary evidence. "The trial court is entitled to choose which testimony to believe as the judge has the advantage over this Court in observing the behavior and demeanor of the witnesses. The court's judgment need not rest upon uncontradicted evidence." Mueggenborg v. Walling, 1992 OK 121, ¶7, 886 P.2d 112, 114. The trial court, being in the best position to evaluate the demeanor of the witnesses and to gauge the credibility of the evidence, will be given deference as to the conclusions it reaches concerning those witnesses and that evidence. Id.

T7 Absent strong evidence to the contrary, we will defer to the trial court's decision in this matter limited, as we are, to the "dry, printed words appearing in the record." Perry v. Perry, 1965 OK 160, ¶ 5, 408 P.2d 285, 287.

ANALYSIS

T8 There are three elements necessary to effect the transfer of title by gift: (1) the intent to give; (2) complete delivery of the thing given; and (8) acceptance by the donee. McSpadden v. Mahoney, 1967 OK 118, 481 P.2d 432. However, a special presumption operates when the transfer is between spouses.

Oklahoma's extant jurisprudence allows a rebuttable presumption of a gift where title to separately held real estate is placed by one owner-spouse in both spouses' names as joint tenants. If a joint tenancy deed facially effects an unconditional transfer, it is deemed to be a presumptive interspousal gift, whose effect can be overcome by clear and convincing evidence of a contrary intent.

Lorman v. Larman, 1999 OK 83, ¶ 9, 991 P.2d 536, 540, 541 (footnotes omitted).

T9 Though Larman and other Oklahoma cases discussed below deal with transfers of real property between spouses, and the various ways in which title to real property could be held, we note Larman states: "Gifts of realty are governed by the principles of personal property law." Larman, 1999 OK 83 at T8, 991 P.2d at 540. We interpret this to mean that whether we are dealing with real or personal property, the principles to be applied remain the same. Further, because the ways in which title to certain bank accounts and in which title to real property can be held are similar, Larman and its progeny are applicable.

110 The sole issue before the trial court was whether certain Bank of Oklahoma (BOK) accounts were the separate property of Husband, or if those accounts had become marital property subject to division by operation of the presumption of an interspousal gift. Normally in dealing with marital property the issue of whether the accounts were held in joint tenancy, tenancy in common, or in the name of one spouse is not an issue. However, it becomes an issue in this case for two reasons. First, all of the property discussed below was owned by Husband prior to marriage, and it is undisputed that Wife did not contribute to those accounts during marriage. Our inquiry would end there, but for the second reason: the operation of the presumption of an interspousal gift if those assets were later placed in both names as joint tenants.

T11 Again, Larman notes Oklahoma allows a rebuttable presumption of a gift to operate when:

title to separately held real estate is placed by one owner-spouse in both spouses' names as joint tenants. If a joint tenancy deed facially effects an unconditional transfer, it is deemed to be a presumptive interspousal gift ....

Id., 1999 OK 83, 1 9, 991 P.2d at 540, 541.

112 Thus, we must first examine the record to find any competent evidence to support the conclusion that title to separately held assets had been placed by one owner-spouse in both spouses' names as joint tenants. If such evidence exists, the presumption of an interspousal gift operates as a matter of law, and that asset loses its separate character and becomes joint marital property subject to division. The presumption can be rebutted, however, by clear and convincing evidence that there was no intent to "invest the spousal grantee with an interest in the property, but rather [title was transferred] for a purpose that is clearly collateral to any intended change in the existing ownership regime," Larman, 1999 OK 83 at ¶ 10, 991 P.2d at 541, or where fraud and special agreement to the contrary are present. Shackelton v. Sherrard, 1963 OK 198, 385 P.2d 898. We further note it is reversible error for the trial court to ignore the operation of the presumption of an inter-spousal gift and characterize the property as the separate property of one party or the other. Chastain v. Posey, 1988 OK 46, 665 P.2d 1179.

The Accounts

{ 13 Wife claims she is entitled to an equitable division of seven specific accounts. Husband contends she is not. The trial court awarded all of the accounts to Husband. Applying the principals set out above, we find that Wife proved Husband placed three of those accounts into joint tenancy with her, thus creating the presumption of a gift. Further, we find Husband failed to rebut the presumption that an interspousal gift occurred by clear and convincing evidence in two out of three of those instances, and the following accounts therefore became joint marital property subject to an equitable division.

T14 BOK Account No. 3790. Husband opened this account on February 28, 1998. The account was held in Husband's and Wife's names, d/b/a J.H. Beale Investments. Both parties' signatures appear on this account as co-owners, though the exhibit does not reflect whether this is an individual or joint account. However, Husband testified under oath that he intended this account to be one held in joint tenancy. This account was closed and the money was taken by Husband and put into another account, held solely in his name.

115 Tulsa National Bank Account No. 13971 CD. This was opened June 4, 1998, in both names. The terms of the account state that:

An account with two or more Account Holders is a joint account. Unless you designate otherwise on the Signature Card, joint Account Holders will be considered joint tenants with right of survivor-ship.

As of the date of this appeal, this account remained open and Husband had not removed Wife's name, altered the way in which she was listed, or done anything inconsistent with the presumption that the account was held in joint tenancy.

{16 We find that in the following five instances, there was either insufficient evidence to prove the account was intended to be held in joint tenancy or, if Wife's name appeared on the account as a co-owner, Husband presented clear and convincing evidence to overcome the presumption of an interspousal gift. Therefore we affirm the trial court's award of the following accounts to Husband.

117 BOK Account No. 0959. This account was opened on October 9, 1997. Husband closed this account February 18, 2000. Wife is listed as a co-holder. There is no testimony from either party, nor evidence from the documents themselves, to show this account was held in joint tenancy. We conclude the presumption did not operate.

118 BOK Account No. 1018. This time-deposit account was opened by Husband on December 17, 1997. It shows Husband's and Wife's names as co-owners doing business as "JH Beale Investments." The account was closed on February 18, 2000. There is no testimony from Husband regarding his intent as to whether this account was to be held in joint tenancy with Wife. Because the document does not reflect such intent, we hold this account was not created or held in joint tenancy.

119 BOK Account No. 2689. This time-deposit account was opened March 3, 1998. It lists Husband and Wife as co-owners doing business as "J.H. Beale Investments." The account was closed on February 18, 2000. There is no testimony from Husband regarding his intent as to whether this account was to be held in joint tenancy with Wife. Because the document does not reflect such intent, we hold this account was not created and held in joint tenancy.

120 BOK Account No. 6148. This is Husband's personal checking account held by him prior to marriage. At some unspecified date during the marriage, Husband added Wife' s name to the account. He later removed her name on January 21, 2000. Wife asserts Husband admitted at trial that he considered the account to belong to both parties, but other evidence suggests that only Husband had access to the checkbook, only Husband used the checkbook, and Wife contributed nothing to the funds in that account. We thus conclude the presumption of an interspousal gift did operate, but was later rebutted by the evidence set out above.

121 BOK Account No. 0947. Husband admitted opening this "time deposit" account on September 8, 1997, as a joint account with Wife. This is so despite the fact Wife's Exhibit No. 5, which is a copy of the confirmation documents generated when the account was created, merely lists Husband and Wife as co-owners doing business as "J.H. Beale Investments." The account was closed on February 18, 2000. The money from the account was taken by Husband and put into another account, held solely in his name. We hold that though Husband intended this to be a joint account, Wife's testimony reveals she was not aware that this account existed, much less that her name was thereon, until after the divorce proceedings had begun. She testified she had no conversations with Husband or the bank regarding this particular account. We therefore conclude that though there was intent to treat this transfer as a gift because of the operation of the interspousal presumption set out above, we nevertheless conclude that because Wife was unaware of this transfer, she was presumptively unable to accept the gift as the donee. Acceptance of the gift by the donee is one of the three fundamental elements of a gift.

Appeal-Related Attorney's Fee

122 Wife's request for an appeal-related attorney's fee is denied.

CONCLUSION

1 23 We hold the trial court failed to apply Oklahoma law applicable to this issue, and instead relied on other jurisdictions and non-precedential legal commentaries. Applying the law to these facts, we conclude the trial court erred, in part, in its division of the parties' assets. We therefore affirm in part, reverse in part, and remand for further proceedings. Upon remand, the trial court is directed to equitably divide the following martial assets, and grant Wife judgment for her portion of these assets: BOK Account No. 3790, and the Tulsa National Bank No. 13971 CD both valued as of June 8, 2001, the date the divorce was first pronounced to Wife with statutory post-judgment interest to be calculated and awarded from June 8, 2001.

124 The remainder of the trial court's opinion is affirmed.

125 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

REIF, J., concurs, and RAPP, J., concurs in part and dissents in part.

RAPP, J.,

concurring in part and dissenting in part:

T1 I dissent relative to accounts 0959, 0947, and 1018, for the reason that each of these accounts exhibited an "intent to invest the spousal grantee with an interest in the property." Larman v. Larman, 1999 OK 83, ¶ 10, 991 P.2d 536, 541. Thus, Wife would here be entitled to her marital share of the present value of the accounts as of the date of their closing. Accordingly, I would reverse only as to these accounts.

      . Because the parties identify the Bank of Oklahoma Accounts by the last four digits of the account number, we will likewise do so for continuity in the record.

      . Wife testified that on one occasion, Husband gave her a blank check to use to purchase a specified item. This was the only use of the account by Wife.


source: Caselaw Access Project

author: BILLINGS, Associate Presiding Judge: BENCH, Judge, DAVIS, Judge,

license: Public Domain

text:
    2003 UT App 355
    Bradley D. JONES, Plaintiff and Appellant, v. SALT LAKE CITY CORPORATION, et al., Defendants and Appellees.
    No. 20020941-CA.
    Court of Appeals of Utah.
    Oct. 17, 2003.
    Rehearing Denied Nov. 7, 2003.

      Seott B. Mitchell, Salt Lake City, for Appellant.
    J. Wesley Robinson, Salt Lake City Law Department, Salt Lake City, for Appellees.
    Before BILLINGS, Associate Presiding Judge, and BENCH and DAVIS, JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

111 Bradley Jones appeals the trial court's order denying his motion for partial summary judgment and granting Salt Lake City's motion for summary judgment. Jones also appeals the trial court's order denying Jones's motion for leave to file a second amended complaint. We affirm.

BACKGROUND

T2 In March 1997, Defendant Salt Lake City (the City) seized a number of firearms in connection with Jones's arrest on an explosives charge. Jones pleaded guilty to a third degree felony of Recklessness-Incendiary Device Parts in August 1997. On October 24, 1997, the Honorable Glenn Iwasaki issued an order as follows: "It is hereby ordered that the firearms seized at the time of [Jones's] arrest be turned over to a licensed firearms dealer, to be sold at current market value, and the proceeds to be returned to [Jones] through his counsel." Notwithstanding this order, on February 9, 1998, pursuant to the authorization of Officer Kelly Kent of the Salt Lake City Police Department, the City destroyed the firearms.

1 3 Jones's former attorney made considerable efforts to obtain compliance with Judge Iwasaki's order. In December 1998, Jones's former attorney instructed his law clerk, Jeff Tachiki, to look into the matter of Jones's firearms. Tachiki made several calls to the Salt Lake County District Attorney's office before being referred to Sergeant Jack Rick-ards (Sgt.Rickards) of the Salt Lake City Police Department. On January 14, 1999, Tachiki provided Sgt. Rickards a copy of Judge Iwasaki's order. Sgt. Rickards indicated the weapons could be claimed if the District Attorney signed a release for the firearms. Tachiki obtained the release and provided it to Sgt. Rickards on March 8, 1999, at which time Sgt. Rickards informed Tachiki the firearms were on a list to be destroyed. In a telephone call to Tachiki on March 16, 1999, Sgt. Rickards confirmed the firearms had been destroyed. Jones served the City with a notice of claim on March 2, 2000, and filed suit against the City on February 27, 2001, asserting claims against the City for conversion of the firearms and for depriving Jones of his property without due process of law.

'I 4 On June 18, 2001, the trial court signed a scheduling order which provided a cutoff date for amendment of pleadings of July 15, 2001, and declared that "fact discovery shall be completed no later than September 30, 2001." On July 11, 2001, Jones filed his first amended complaint, which added the Salt Lake County District Attorney as a defendant. The District Attorney was later dismissed as a party.

T5 Jones filed a motion for partial summary judgment in September 2001 regarding his claims for conversion and deprivation of due process. The City filed its motion for summary judgment in November 2001, alleging, inter alia, that Jones did not state a cognizable claim for conversion. On June 24, 2002, the City filed a memorandum in opposition to Jones's motion for partial summary judgment in which the City argued that Jones failed to allege a cause of action under 42 U.S.C. § 1983 because he did not allege the due process violation "was the result of any custom or policy of the city." The City also argued, inter alia, that Jones did not make a cognizable claim for a violation of due process. Twenty-one days later, Jones filed a motion for leave to file a second amended complaint wherein he sought to "remedy any alleged pleading defects" in the first amended complaint "with respect to his § 1983 claim against the city" and "add Officer Kelly Kent as a defendant." On September 3, 2002, the trial court denied this motion.

T 6 After hearing arguments on all remaining issues, the trial court denied Jones's motion for partial summary judgment and granted the City's motion for summary judgment. Jones appeals.

ISSUES AND STANDARDS OF REVIEW

17 Jones argues the trial court erred in dismissing, at summary judgment, his conversion and due process claims against the City. "Summary judgment is proper solely in cases in which no genuine issues of material fact exist and the movant merits judgment as a matter of law." Smith Inv. Co. v. Sandy City, 958 P.2d 245, 251 (Utah Ct.App.1998). "We accord no deference to the trial court's legal conclusions, reviewing them for correctness." Id. at 251. Jones also argues the trial court improperly denied his motion to amend his complaint. We will not disturb the trial court's ruling absent "an abuse of discretion resulting in prejudice." Nunez v. Albo, 2002 UT App 247, ¶ 10, 53 P.3d 2 (quotations and citation omitted).

ANALYSIS

I. Conversion

18 Jones argues the trial court incorrectly dismissed his conversion claim against the City. Although the trial court found that Jones did not comply with notice requirements under the Utah Governmental Immunity Act, see Utah Code Ann. § 68-30-13 (1997), we instead affirm on the grounds that Jones does not state a legal claim for conversion.

19 Jones claims the City's destruction of his firearms interfered with his right to "control [them], ie., have them sold by a licensed firearms dealer." (Emphasis added.) This falls short of conversion. " 'A conversion is an act of wilful interference with a chattel, done without lawful justification by which the person entitled thereto is deprived of its use and possession." Fibro Trust, Inc. v. Brahman Fin., Inc., 1999 UT 13, ¶ 20, 974 P.2d 288 (quoting Allred v. Hinkley, 8 Utah 2d 73, 328 P.2d 726, 728 (1958)). Specifically, "a party alleging conversion must show that he or she is entitled to immediate possession of the property at the time of the alleged conversion." Fibro Trust, 1999 UT 13 at 120, 974 P.2d 288 {emphasis added); see Restatement (Second) of Torts § 226 (1965) ("One who intentionally destroys a chattel ... is subject to lability for conversion to another who is in possession of the chattel or entitled to its immediate possession.").

110 Although Judge Iwasaki's order gave Jones a right to the proceeds from the sale of the firearms, Jones concedes that his previous conviction of a violent crime precluded him from legally possessing or owning the firearms when they were destroyed. See Utah Code Ann. § 76-10-503(1)(a) (1999) ("Any person who has been convicted of any crime of violence ... may not own or have in his possession ... any dangerous weapon[.]). Thus, Jones's conversion claim fails as a matter of law. Cf. Wichita Falls v. ITT Comm. Fin. Corp., 827 S.W.2d 6, 7, 9-10 (Tex.App.1992) (concluding that although plaintiff city had a right to tax proceeds and judicial foreclosure of forty autos at the time of the alleged conversion, plaintiff had no ownership or possessory rights in the autos and thus had no legal claim for conversion)

II. Failure to Properly Plead 42 U.S.C. § 1983 Claim

111 Jones insists the trial court erred in finding that Jones "failed to properly allege a valid federal cause of action against the city pursuant to" 42 U.S.C. § 1983 (1999).

112 A § 1983 claim against a municipality must allege a deprivation of a right secured by the Constitution and laws of the United States that resulted from the municipality's actions "under color of law." Baker v. Angus, 910 P.2d 427, 480 (Utah Ct.App.1996). A municipality's actions do not fall under color of law unless its employee(s) "acted according to a law, custom, or usage known to and acquiesced in or condoned by the municipality." J.H. v. West Valley City, 840 P.2d 115, 120 (Utah 1992); see Monell v. New York Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978).

113 Although Utah courts have not previously addressed the minimum wording required for alleging a custom or policy violation in a complaint, other courts at a minimum require "a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice." Karim-Panak v. Los Amgeles Police Dep't, 839 F.2d 621, 624 (9th Cir.1988); see Mulleneaux v. State, 190 Ariz. 535, 950 P.2d 1156, 1160 (Ct.App.1997) (applying same standard); of First Sec. Bank v. Conlin, 817 P.2d 298, 299 (Utah 1991) (noting that Utah courts look to case law interpreting similarly worded federal rules where Utah case law is lacking). We adopt this minimum requirement for pleading § 19883 claims against municipalities in Utah.

14 Here, Jones's first amended complaint only alleges that the City's destruction of Jones's firearms deprived him of due process. There is no mention, even superficially, that the City's police department acted pursuant to the City's custom or policy, or anything that can reasonably be construed as such. Thus, the trial court properly dismissed Jones's § 1988 claim as a matter of law.

III. Trial Court's Denial of Proposed Second Amended Complaint

{15 Jones argues the trial court abused its discretion in denying Jones's motion for leave to file a second amended complaint. In his proposed second amended complaint, Jones seeks to add Officer Kelly Kent, individually, as a defendant, and alleges that the destruction of the firearms was in accordance with City policy.

T16 "Rule 15(a) of the Utah Rules of Civil Procedure directs that leave to amend pleadings 'shall be freely given when justice so requires," Nunez v. Albo, 2002 UT App 2477, ¶ 19, 53 P.3d 2 (quoting Utah R. Civ. P. 15(a)), and "[it is well established that rule 15 should be interpreted liberally so as to allow parties to have their claims fully adjudicated." Id. (quotations and citation omitted). Factors to consider in deciding whether to allow amendment include whether the movant "was aware of the facts underlying the proposed amendment long before its filing," "the timeliness of the motion," "the justification for the delay," and "any resulting prejudice to the responding party." Atcitty v. Board of Educ., 967 P.2d 1261, 1264 (Utah Ct.App.1998) (quotations and citations omitted).

117 We conclude the trial court did not abuse its discretion when it denied Jones leave to add Officer Kent as an individual defendant and the allegation that the destruction of the firearms was in accordance with City policy. As the trial court found, Jones moved to amend his complaint nearly a year after the cutoff date for amending pleadings in the trial court's scheduling order. See Nunez, 2002 UT App 247 at ¶ 33, 53 P.3d 2 (noting in movant's favor that "no scheduling order had been entered"). Presumably, Jones could have easily discovered earlier the names of individual officers involved in destroying the weapons, and Jones should have known all along whether he wanted to sue Officer Kent individually. See Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 49, 56 P.3d 524 ("[A] trial court does not abuse its discretion when it denies a motion to amend a pleading ... when[, in part,] the moving party knew that all of the parties it sought to add were involved with each other from the outset of the case and therefore ... they could have been joined in a timely manner." Id. (quotations and citations omitted)). Jones presents no new information to suggest otherwise. Further, Jones should have been aware of the "custom or policy" legal requirement of § 1988 claims from the outset.

118 Moreover, as noted above, Jones did not file his motion to amend until well after entry of the scheduling order, after lengthy discovery, and nearly a year after the cutoff date in the scheduling order for the amendment of pleadings. Therefore, we cannot say the trial court abused its discretion in failing to allow Jones to amend his complaint.

IV. Due Process

119 Jones contends the trial court erred in dismissing his claim that the City denied him procedural due process by destroying his firearms without providing notice and a hearing. Jones arguably has shown a due process property interest in the firearms' proceeds in that Judge Iwasaki's order gave Jones a "legitimate claim of entitlement to [the proceeds]." Patterson v. American Fork City, 2003 UT 7, ¶ 23, 67 P.3d 466 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). However, Jones failed to properly state a claim against the City under 42 U.S.C. § 1983, and Jones may not assert a direct claim against the City for violations of due process under the federal constitution. "[Dilirect actions under the Constitution against state officials are not appropriate.... '[Tlhe Supreme Court has never recognized a [direct constitutional] cause of action where $ 1988 was available as a remedy" Bauchman v. West High School, 900 F.Supp. 254, 263 (D.Utah 1995) (quoting Thomas v. Shipka, 818 F.2d 496, 500 (6th Cir.1987), judgment vacated on other grounds, 488 U.S. 1036, 109 S.Ct. 859, 102 L.Ed.2d 984 (1989)). Consequently, the trial court properly dismissed Jones's due process claim under the federal constitution.

CONCLUSION

120 We conclude Jones failed to state a claim for conversion as a matter of law. Additionally, Jones failed to properly plead a § 1983 cause of action against the City. Further, the trial court did not abuse its discretion in denying Jones's motion for leave to amend his complaint to add Officer Kent as a defendant and allege the City acted under its own policy. Finally, while Jones may have a cognizable claim for violations of his due process rights, because he failed to properly assert a valid cause of action under 42 U.S.C. § 1983, we conclude his due process claim fails as well.

BENCH, Judge,

(concurring in the result):

1 21 Because it was the Iwasaki order that gave Jones a due process property interest in the firearms, it was incumbent upon Jones to timely give the city notice of the order's existence. He made no effort to do so until long after the firearms had been destroyed pursuant to city policy. Jones is therefore in no position to assert any claim to the firearms.

«[ 22 A brief review of the time line helps to explain why, as a matter of law, the city cannot be held responsible for Jones's claim. In March 1997, Jones was arrested and the firearms were seized. In August 1997, Jones pleaded guilty and in October 1997, he obtained the Iwasaki order. Jones concedes that the city first received notice of the existence of the Iwasaki order in December 1998. The city, however, had destroyed the firearms many months earliee-in February 1998. In view of Jones's failure to timely apprise the city of his property interest, the claims he asserts fail as a matter of law.

[ 23 I therefore concur in the result of the lead opinion, which affirms summary judgment. ,

DAVIS, Judge,

(concurring and dissenting):

[ 24 First, I concur in the analysis in footnote 2 of the lead opinion relative to the accrual of Jones's conversion claim, but dissent with respect to the remainder of the analysis.

25 The lead opinion summarily disposes of Jones's conversion claim for "failure to state a legal claim" for conversion-a ground not argued to or ruled upon by the trial court or argued by either party to this court-a concern I expressed in Bailey v. Bayles, 2001 UT App 34,¶ 18, 18 P.3d 1129 (Davis, J., dissenting), aff'd, 2002 UT 58, 52 P.3d 1158. Even if it were appropriate to base our decision on an issue not addressed by either the parties or the trial court, I have found no authority for the proposition that a statute criminalizing possession of property is tantamount to depriving one of an interest therein for the purpose 'of pursuing a conversion claim.

26 The city argues that the firearms are "per se contraband." Many firearms are not inherently illegal to possess, and it is only Jones's "membership in a category of persons prohibited from possessing firearms" that criminalized Jones's possession of the firearms. Cooper v. City of Greenwood, 904 F.2d 302, 305 (5th Cir.1990); see also Serio v. Baltimore County, 115 F.Supp.2d 509, 515 n. 6 (D.Md.2000) (mem.) (concluding defendant's firearms were not contraband per se where defendant was a convicted felon without possessory rights in the firearms, but where the possession of firearms, standing alone, was not a crime); but see Bilida v. McCleod, 211 F.3d 166, 178 (1st Cir.2000) {concluding that a wild raccoon, which could not be lawfully possessed without a permit, was contraband per se in the hands of a permitless defendant).

127 The lead opinion then begins the remainder of its analysis by correctly observing that Jones initially failed to properly plead his § 1983 action, see 42 U.S.C.A. § 1983 (2003), and then approving the trial court's refusal to allow Jones to remedy the defect because "[pJresumably, [our presumption, not based on any evidence or law,] Jones could have easily discovered ... the names of individual officers involved in destroying the weapons"; and our similar unilateral determination that "Jones should have been aware of the 'custom or policy' legal requirement." What Jones could or could not have discovered and what Jones should or should not have been aware of involve factual determinations, inappropriate for summary judgment.

128 Finally, having ruled that Jones cannot pursue his § 1983 claim, we, again without notice to the parties, and notwithstanding Judge Iwasaki's order, deprive Jones of his due process claim because " § 1983 was available as a remedy." Jones has shown a due process property interest in the firearms' proceeds. This case is factually unique because Judge Iwasaki ordered that the firearms be turned over to a dealer and sold at market value, with the proceeds returned to Jones. The city deprived him of this right to the proceeds by destroying the weapons rather than returning them for sale.

1 29 A due process property interest arises from an independent legal source, see Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), "such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract." Carnes v. Parker, 922 F.2d 1506, 1509 (10th Cir.1991). Here, the judicial order, regardless of the unique facts surrounding it, is another example of an independent source carrying the force of law. Judge Iwasaki's order-similar to a statutory

entitlement-gave Jones " 'more than a unilateral expectation of [the proceeds],'" but rather a " legitimate claim of entitlement to [them]'" Patterson v. American Fork City, 2008 UT 7, 123, 67 P.3d 466 (quoting Roth, 408 U.S. at 577, 92 S.Ct. at 2709) This is especially true in light of the city's lack of any legal authority to destroy the firearms.

1 30 In my view, under all of the facts and cireumstances of this case (not those based on our presumption or what we think Jones should have been aware of), Jones should have been allowed to amend his complaint and pursue his claims.

      . Jones does not contend that the City had knowledge of this order when it destroyed the firearms.

      . Jones argues his conversion claim did not accrue until March 16, 1999, when the City officially informed Jones his firearms were destroyed. We agree.
      Under the Utah Governmental Immunity Act, a cause of action does not even accrue until a party is aware that the governmental entity's action has harmed its interests. See Bank One Utah v. West Jordan City, 2002 UT App 271,% 12, 54 P.3d 135. In Bank One Utah, we interpreted the language of the Utah Governmental Immunity Act, Utah Code Annotated § 63-30-13 (1997), which provides: "A claim against a political subdivision, or against its employee ... is barred unless notice of claim is filed with the governing body of the political subdivision within one year after the claim arises...." Id. (quoting Utah Code Ann. § 63-30-13). At issue in that case was whether the one-year period in which Bank One was required to serve its Notice of Claim on West Jordan began to run when Bank One's toilets malfunctioned or when Bank One was first informed that the West Jordan sewer line servicing Bank One had been punctured. See id. at I 8. We stated:
      Obviously, a party cannot have a legitimate "claim" against a governmental entity until it is aware that the governmental entity's action or inaction has resulted in some kind of harm to its interests. Only then does it have not just a gripe against parties unknown, but a "claim" against a particular governmental entity.
      Id. at 112. We concluded Bank One's cause of action did not accrue against West Jordan until Bank One became aware that its plumbing problems may have been caused by West Jordan failing to properly mark its sewer line. See id. at T17.
      Similarly, Jones could not have known that he had a claim against the City until March 3, 1999, when he was informed that the City might have destroyed his firearms. Jones filed his Notice of Claim on March 2, 2000, within a year of when his claim arose. Thus, the trial court erred in finding that Jones failed to timely serve his Notice of Claim on the City in compliance with the Utah Governmental Immunity Act.

      . The City destroyed the firearms in February 1998. For convenience however, we cite the 1999 version of Utah Code Annotated section 76-10-503, which in 1999 remained unchanged in relevant portions. Section 76-10-503 was repealed and reenacted effective May 1, 2000. See Utah Code Ann. § 76-10-503 (Supp.2003) (Repeals and Reenactments Notes).

      . Jones does not and cannot claim conversion of the proceeds from the firearms. Although "[mJoney may be the subject of conversion," it is so only "when the party charged wrongfully received it." State v. Twitchell, 832 P.2d 866, 870 (Utah Ct.App.1992). Here, Jones does not claim the firearms were ever sold or that the City received any proceeds.

      . The city does not challenge the legal validity of Judge Iwasaki's order.

      . The trial court found, in a collateral matter, that the city had no legal authority to destroy the weapons, and the city does not contest this other than pointing to a statute, see Utah Code Ann. § 76-10-525 (1999), that only deals with weapons used as evidence in court.


author: LEHMAN, Justice. GOLDEN, J.,

text:
    2003 WY 141
    In the Interest of SNK, a minor child. Northern Arapaho Tribe, Appellant (Intervenor), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner).
    No. C-03-5.
    Supreme Court of Wyoming.
    Nov. 4, 2003.

      Representing Appellant: Andrew Baldwin and Christopher J. Schneider of Baldwin & Crocker, P.C., Lander, WY. Argument by Mr. Schneider.
    Representing Appellee: Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; and Sandra Siel Kitchen, of Copenhaver, Kath & Kitchen, LLC, Powell, WY as Guardian ad Litem for SNK. Argument by Mr. Wilde.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶1] Appellant, the Northern Arapaho Tribe (Tribe), seeks review of the district court's order continuing the placement of the minor child involved in this case, SNK, in a non-Indian foster home. Essentially, the Tribe argues that the district court in rendering its decision improperly determined that the "existing Indian family" exception to the Indian Child Welfare Act (ICWA) applied. After our review, we hold that the issues presented are moot.

ISSUES

[¶ 2] The Tribe raises the following issues on appeal:

1. Did the district court err in holding that [ICWA] was not applicable to this case?
2. Did the district court provide proper notice to all parties?
3. Did the district court comply with the Due Process requirements of the Wyoming State Constitution?
4. Did the district court comply with the Due Process requirements of the United States Constitution?

Appellee, State of Wyoming, Department of Family Services (State), phrases the issues on appeal as: .

I. Whether an order from a 12 month review hearing issued in a juvenile proceeding that has not progressed to an adjudicatory hearing is a final order for purposes of an appeal.
II. Whether the juvenile court's statement that [ICWA] was not applicable equates to the adoption of the "existing Indian family exception" to [ICWA].
III. Whether the juvenile court's statement that [ICWA] is not applicable to this matter presents a justicilable controversy for the court to adopt or reject the "existing Indian family exception."

FACTS

[¶ 3] SNK is an enrolled member of the Tribe as is her biological father. However, SNK's biological mother and ex-stepfather are non-Indian. SNK's biological parents were never married. Nevertheless, SNK lived with her biological mother and biological father for four months during the first year of her life. SNK has had very limited contact with her biological father since that time. SNK's biological mother and her ex-stepfather were married in 1994, and SNK resided with both of them or either of them, individually, for most of her life. SNK's biological mother and ex-stepfather were divoreed in 2001; but SNK, her biological mother, and her ex-stepfather still maintain very close relationships. SNK also has three stepsiblings by virtue of the union between her biological mother and her ex-stepfather. SNK has resided with these stepsiblings for a substantial period of her life, and has a close relationship with each of them.

[¶ 4] In March of 2001, the State filed a juvenile neglect proceeding against SNK's biological mother. At the time the State did not know the whereabouts of either SNK's biological mother or biological father. The district court, therefore, ordered legal and physical custody to SNK's ex-stepfather under the supervision of the State. In August of 2001, the district court learned that SNK was living with her biological mother in Baker, Montana. Following this discovery, the district court found that SNK's ex-stepfather had violated its order and that continued placement of SNK in his home would not be in her best interests and thus placed SNK in a foster home.

[T5] In February 2002 the Tribe was allowed to intervene in the action. Upon its intervention, the Tribe did not question the jurisdiction of the district court or file a motion to remove this matter to a different tribunal. Rather, the Tribe has participated as a party, including participation in the mul-ti-disciplinary team (MDT) meetings.

[¶ 6] On October 17, 2002, the district court held a twelve-month review hearing. At this hearing the district court took evidence and heard testimony from various individuals, including SNK's mental counselor. Argument was also presented that the "existing Indian family" exception to ICWA applied. Near the conclusion of this hearing, the district court stated:

Okay. And I will go ahead and enter the order at this point, having considered all of the testimony presented and the arguments and the legal authorities cited. This Court also has considerable familiarity with the Indian Child Welfare Act. And the Court will find that, first of all, the Indian Child Welfare Act is not applicable in this instance for the reasons cited and the cases cited and the law cited by [the appointed guardian ad litem for SNK] and by [counsel for the biological mother of SNK].
The Court will find that it is in the best interests of the child that she remain in the present placement until further order of the Court, and will make the necessary findings for the 12-month review as required by law.
The Court will still consider the primary goal, until further order of the Court, to be reconciliation with the mother, in whose custody she was in before all of this started, and, as an alternative to that, will consider placement in the home of [the ex-stepfather].
... We don't have the home study yet, and of course we don't know what that's going to say; we haven't seen it yet. But we do know that this child has said that she-her first choice was to live with her mother. She would also like to be with her siblings. And the Court does have some concern, in the event that the home study on [the ex-stepfather] is-does not indicate the viability of a placement there, and not knowing how long the mother may continue to be incarcerated or unavailable or whether she'll be ready to take custody upon her release, I think that it also is necessary that the court order a home study of the home on the reservation that was mentioned by Mr. Trosper.

The district court entered its written order on December 9, 2002, finding "that the Indian Welfare Act (ICWA) is not applicable in this matter." The Tribe, having unsuccessfully moved for reconsideration, now appeals.

[T7] Subsequent to the filing of appeal, the district court held a hearing on February 4, 2003, and ruled that SNK should be placed in the home of her ex-stepfather until further "permanency" proceedings could be held. All parties to this action, including the Tribe, agreed with SNK's temporary placement as ordered. The Tribe, however, continues to object to any aspect of the proceedings that fail to apply the provisions of ICWA.

STANDARD OF REVIEW

[¶ 8] In Ekberg v. Sharp, 2003 WY 123, ¶ 10, 76 P.3d 1250, ¶ 10 (Wyo.2003) (citing Carroll v. Bergen, 2002 WY 166, ¶ 9, 57 P.3d 1209, ¶ 9 (Wyo.2002) and Springer v. Blue Cross & Blue Shield of Wyoming, 944 P.2d 1173, 1175-76 (Wyo.1997)), we stated:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Findings of fact will not be set aside unless the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. We review a district court's conclusions of law de novo on appeal.

DISCUSSION

Appealable Order

[¶ 9] Initially the State contends the district court's order is not an appealable order and that the Tribe cannot only appeal the district court's ruling on ICWA. The Tribe counters by arguing that the district court's ruling effectively denies it the right to intervene in the case, thereby depriving the Tribe of its federally recognized interest in protecting the best interests of its children, Indian culture, and way of life. The Tribe also asserts that pursuant to W.R.A.P. 1.05, the district court's order must be considered an appealable order because it affected a substantial right of the Tribe and, in effect, determined this action.

[¥10] We do not find the Tribe's argument that it has been effectively denied an opportunity to participate as an intervening party by virtue of the district court's order persuasive. As indicated earlier, the Tribe was allowed to intervene in this action as specifically provided for by ICWA. 25 U.S.C. § 191l(c). Since being allowed to intervene, the Tribe has actively participated as a party, making appearances at hearings and at MDT meetings. Indeed, when asked by the district court at the review hearing held subsequent to the appeal in this case if the Tribe desired to continue as a party in the action, the Tribe indicated through its attorney that it certainly desired to participate as a party and the Tribe was allowed to do so. Furthermore, the Tribe has not contested the jurisdiction and authority of the district court and has not attempted to remove this action to a different tribunal. See 25 U.S.C. § 1911(b). The Tribe received due process when it was notified of the twelvemonth review hearing and was allowed to participate in that hearing.

[111] However, we hold that the district court's order ruling that ICWA was not applicable in this case does sufficiently affect a substantial right of the Tribe pursuant to W.R.A.P. 1.05(b). The very purpose for Congress' enactment of ICWA was to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. 25 U.S.C. § 1902. Congress, when enacting ICWA, expressly found that there is no resource that is more vital to the existence and integrity of Indian tribes than their children, that States have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families, and that the protection and preservation of Indian Tribes and their resources is of utmost importance. 25 U.S.C. § 1901. Hence, the district court's determination that ICWA did not apply critically affected the Tribe's right to effectuate the aforementioned substantial goal of ICWA. This court has previously held that proceedings under the Juvenile Court Act are "special proceedings." State in Interest of C, 638 P.2d 165, 168 (Wyo.1981).

[T12] As pointed out by the Tribe, this court alternatively has the power of certiorari and the discretion to consider a notice of appeal as a petition for a writ of certiorari even if the order being appealed is not final. In re General Adjudication of All Rights to Use Water in Big Horn River System, 803 P.2d 61, 67-68 (Wyo.1990). Review pursuant to certiorari should be granted when the timely resolution of matters coming to our attention is of extreme and lasting importance to the citizens of this State and may contribute to judicial efficiency. Id. As indicated previously, the applicability of ICWA is of extreme importance to the Tribe and to its members as citizens of Wyoming, including most importantly the child and other individuals directly involved in this action. Accordingly, we hold that the order issued by the district court concerning the twelvemonth review hearing is an appealable order.

Justiciability

[1183] The State argues that, because a factual hearing has not been held in this action, there is no factual basis for this court to review and thus take the steps to accept or reject the "existing Indian family" exception to ICWA. Therefore, the State asserts no justiciable controversy exists for this court to review. The Tribe replies that it is apparent that the basis of the district court's ruling was that the "existing Indian family" exception applied because the district court adopted the exception's reasoning as support for its ruling. The Tribe further argues that this case does present an actual justiciable controversy and that the Tribe is entitled to redress for injury to its federally protected rights. The Tribe finally asserts that the State and SNK's appointed guardian ad litem should not be allowed to advocate and obtain a ruling at the district court level based upon the "existing Indian family" exception but then prevent appellate review simply by asserting that they no longer wish to maintain that argument.

[114] In Southwestern Pub. Serv. Co. v. Thunder Basin Coal Co., 978 P.2d 1138, 1142 (Wyo.1999), we recognized that a justiciable controversy must exist before a court may grant relief. Citing Reiman Corp. v. City of Cheyenne, 838 P.2d 1182, 1186 (Wyo.1992), this court further enunciated that a justiciable controversy is "defined generically as a controversy fit for judicial resolution." To establish a justiciable controversy:

1. The parties must have existing and genuine, as distinguished from theoretical, rights or interests.
2. The controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion.
3. It must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or, wanting these qualities to be of such great and overriding public moment as to constitute the legal equivalent of all of them.
4. The proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues.

Southwestern Pub. Serv. Co. v. Thunder Basin Coal Co., at 1142.

[T15] For the same reasons stated above, we conclude that the Tribe has an obvious existing and real continuing interest in this case, namely, the protection of the best interests of Indian children; the promotion of the stability and security of Indian tribes and families to ensure the existence and integrity of Indian tribes; and the continuation of the cultural and social standards prevailing in Indian communities and families. Similarly, the order at issue squarely affects such interests, and the Tribe has clearly entered this foray as a genuine adversary so as to ensure that the Tribe will advance its position with vigor.

[116] Nevertheless, in argument espoused at oral argument before this court, the State infers that this matter must be considered moot because, after entry of the district court's order concerning the twelvemonth review hearing, the district court entered another order on February 28, 2008, temporarily placing SNK in the home of her ex-stepfather until further "permanency" proceedings could be held in this action. Thus, the State argues that any holding concerning the district court's twelve-month review hearing would be of absolutely no significance.

[¶ 17] This court has often recognized:

Under the umbrella of the justiciable controversy concept stand "the political question{s] doctrine, the administrative questions doctrine, the advisory opinions doctrine, the feigned and collusive cases doctrine, the doctrine of standing, the doe-trine of ripeness, and the doctrine of mootness." Reiman, 838 P.2d at 1186. "These doctrines are premised upon jurisprudential principles which are designed to promote judicial economy and the wise exercise of judicial power." Id.
In this case, Appellants' initial challenge to the jurisdiction of the district court arises under the doctrine of mootness.
The doctrine of mootness encompasses those cireumstances which destroy a previously justiciable controversy. This doctrine represents the time element of standing by requiring that the interests of the parties which were originally sufficient to confer standing persist throughout the duration of the suit. Thus, the central question in a mootness case is "whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties." Wright & Miller § 3588.
Reiman, 838 P.2d at 1187 (citations omitted).

Southwestern Pub. Serv. Co. v. Thunder Basin Coal Co., at 1142-43.

[¶ 18] We have also stated on a number of occasions:

Our general law on justiciability provides that courts should not consider issues which have become moot. Gulf Oil Corp. v. Wyoming Oil and Gas Conservation Comm'n, 698 P.2d 227, 233 (Wyo.1985). We do not decide cases when a decision will have no effect or pertains only to matters that might arise in the future. McLain v. Anderson, 933 P.2d 468, 472 (Wyo.1997). A case is moot when the determination of an issue is sought which, if provided, will have no practical effect on the existing controversy. Id. Therefore, if events occur during the pendency of an appeal that cause a case to become moot or make determination of the issues unnecessary, we will dismiss it. Id.; see also Rocky Mountain Helicopters, Inc. v. Air Freight, Inc., 773 P.2d 911, 924-25 (Wyo.1989).
In Sanchez v. State, 982 P.2d 149, 150 (Wyo.1999), we further elaborated that a case is moot when the matter upon which a determination is sought presents no actual controversy or when a decision can have no practical effect, We have also recognized the general rule that the issue of mootness constitutes a question of law and may be properly addressed by a court sua sponte. Cooper v. Town of Pinedale, 1 P.3d 1197, 1201 (Wyo.2000) (citing, in part, Fund for Animals v. Babbitt, 89 F.3d 128, 132 (2nd Cir.1996)); see also Northern Utilities, Inc. v. Public Service Comm'n, 617 P.2d 1079, 1085 (Wyo.1980).

Wyoming Bd. of Outfitters & Prof'l Guides v. Clark, 2002 WY 24, ¶ 9, 39 P.3d 1106, ¶ 9 (Wyo.2002) (quoting Smith Keller & Assocs. v. Dorr, 4 P.3d 872, 876 (Wyo.2000)).

[¶ 19] Any determination by this court relating to the basis upon which the district court continued to place SNK in the non-Indian foster home as of October 17, 2002, by virtue of its order at the twelve-month review hearing is moot in that it would be wholly ineffectual and of no practical effect. The district court has now temporarily placed SNK in the home of her ex-stepfather. Indeed, if this court were to rule that the district court should not have placed SNK in the non-Indian foster home in October of 2002, this determination would be inconsequential and of no practical value as another temporary placement of SNK was later ef fectuated. In fact, SNK's last temporary placement does not appear to be based on reasons related to ICWA and was not contested by any party, including the Tribe.

[¶ 20] Further, we recognize that the parties are at odds as to the actual basis utilized by the district court in its ruling that ICWA does not apply to this case, ie., either through application of the "existing Indian family" exception or otherwise. Our review of both statements made by the district court during the twelve-month review hearing and the district court's written order concerning that hearing is of little assistance in determining the basis of the district court's ultimate ruling. Review of the record on appeal leaves this court with an indication that the district court's statements during the hearing may be characterized as obiter dictum.

[¶ 21] This conclusion is particularly supported by the fact that the district court heard from a qualified expert on the suggested temporary placement options for SNK and the surrounding cireumstances, including the preference expressed by SNK's biological mother. The district court ordered a "home-study" of SNK's ex-stepfather's home as well as the Indian foster home suggested by the Tribe. In addition, the district court's statements during the twelve-month review hearing are less than clear especially considering that the district court did not include in its related written order the specific reason for its determination that ICWA did not apply. Finally, it again should be noted that at the February 4, 2008 review hearing, some months after the twelve-month review hearing, the Tribe indicated when asked that it continued to desire to participate as a party. The only means by which the Tribe could have been allowed to participate as a party in this action is through the applicability of ICWA. Accordingly, while the district court previously ruled that ICWA did not apply, it apparently overruled that determination by later allowing the Tribe to participate as a party.

[¶ 22] Therefore, we conclude that the issue in this case regarding the applicability of ICWA and the "existing Indian family" exception to ICWA is moot. While we recognize that the applicability of the "existing Indian family" exception to ICWA in Wyoming is an important issue that needs to be addressed, we simply do not believe that, under the cireumstances presented by this case, it is appropriate for this court to make such a determination at this time.

[123] Accordingly, although we hold that the order from which the Tribe appeals is an appealable order, the issues presented by the Tribe are moot. This court has clearly established that it will not make determinations which may be characterized as advisory, and this court will not digress from such a position unless extreme circumstances demand.

"Although the question as postulated in this case may be properly before us in the future, to render an opinion here would be to issue an advisory opinion. This Court has said repeatedly that it will not issue advisory opinions, and we decline to do so now." State Bd. of Equalization v. Jackson Hole Ski Corp., 745 P.2d 58, 59 (Wyo.1987) (citing Graham v. Wyoming Peace Officer Standards and Training Com'n, 737 P.2d 1060 (Wyo.1987)); see also Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d 769, 772 (Wyo.1995).

State Dep't of Rev. v. Amoco Prod. Co., 7 P.3d 35, 41 (Wyo.2000).

CONCLUSION

[¶ 24] For those reasons given, we hold the issues presented to this court are moot and not reviewable on appeal. Board of County Comm'rs for Sublette County v. Exxon Mobil Corp., 2002 WY 151, ¶ 18, 55 P.3d 714, ¶ 18 (Wyo.2002).

GOLDEN, J.,

dissenting.

[¶ 25] I respectfully dissent. The issue is not, as the majority opinion suggests, a challenge to a specific placement order. The issue is what law applies to the underlying juvenile eourt proceedings. This is an important question that is appealable, justiciable, and cannot possibly become moot because the answer to the question affects almost every aspect of the juvenile court proceeding.

[¶ 26] The specific issue is whether the ICWA applies to this case. The ICWA is not something of limited application. The ICWA provides a myriad of substantive and procedural safeguards that must be met in addition to state law standards. Orders that do not comply with the requirements of the ICWA face the possibility of being declared void. 25 U.S.C. § 1914. Because the dictates of the ICWA potentially affect the very nature and course of proceedings, the determination of its application can never be considered moot.

[T27] Because of the mandatory requirements of the ICWA, it is critical to determine as early as possible whether the ICWA applies to a proceeding. In this case, it is an easy determination to make. The child who is the subject of this proceeding is an enrolled member of the Northern Arapaho Tribe. She is subject to involuntary foster care. The ICWA applies 25 U.S.C. § 19083(1)G); 25 U.S.C. § 1912.

[T28] While it may not have been as clearly presented as this Court might have hoped, there is only one possible reason the trial court could have determined that the ICWA did not apply. It was argued that the ICWA did not apply because of the "existing Indian family" exception that has been judicially created in some states. The "existing Indian family" doctrine, which has not been addressed or adopted by the Wyoming courts, precludes application of the ICWA when the Indian child's parent or parents have not maintained a significant social, cultural, or political relationship with his or her tribe. See State in Interest of D.A.C., 933 P.2d 993 (Utah App.1997); In re Bridget R., 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507 (Cal.App.1996). Since this judicially created exception was first introduced in the case of In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), it has been widely criticized. See State in Interest of D.A.C., 933 P.2d 993 (Utah App.1997) (collecting cases). There is currently pending in the United States House of Representatives a bill, H.R. 2750, that would clarify that the ICWA applies to all Indian children, regardless of whether an Indian child has been part of an Indian family or has maintained a social or cultural relationship with an Indian tribe.

[¶ 29] I would hold that, as a matter of law, the "existing Indian family" exception defies that clear language and intent of the ICWA, which includes promoting the stability and security of Indian tribes and protecting the unique Indian eulture. 25 U.S.C.

. § 1902. Wyoming should not recognize the judicially created "existing Indian family" exception. Because, as a matter of law, the "existing Indian family" exception is not recognized in Wyoming, no factual question exists as to whether the exception applies in this specific case. SNK is an Indian child as defined by the ICWA and the ICWA applies to this case. I would remand this case to the juvenile court for further proceedings consistent with the mandates of ICWA. This would include conducting a new placement hearing, taking into account the factors required by the ICWA. 25 U.S.C. § 1915.

      . At the date of filing this appeal in 2002, SNK was ten years old.

      2. On behalf of the Tribe, Mr. Trosper suggested at the twelve-month review hearing that the dis- . trict court consider placing SNK in the home of a great-aunt on her biological father's side of the family who lived on an Indian reservation near Riverton.

      . Upon motion to modify the record on appeal by the State, this court ordered the modification of the record to include the order of the district court entered on February 28, 2003, placing SNK in the home of her ex-stepfather.

      . W.R.A.P. 1.05 provides, in applicable part:
      An appealable order is:
      (a) An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment; or
      (b) An order affecting a substantial right made in a special proceeding[.]

      . Some state courts have held that ICWA does not apply to an Indian child raised by a non-Indian parent with no tribal contact. Such reasoning is referred to as the "existing Indian family" exception.

      . Again, all parties, including the Tribe, agreed with SNK's temporary placement in her ex-stepfather's home as ordered.

      . After all appellate briefs were filed with this court the State moved this court for supplementation of the record on appeal to include the transcript and order regarding the review hearing held by the district court on February 4, 2003. This motion was granted.

      . I strongly disagree with the assumption made in the majority opinion that, since the juvenile court gave the Tribe the opportunity to remain in the case as a party, the juvenile court must have changed its mind and decided the ICWA applies. A party is defined in the Juvenile Protection Act as "any ... person made a party by an order to appear, or named by the juvenile court." Wyo. Stat. Ann. § 14-3-402(a)(xiv) (LexisNexis 2003). The juvenile court could allow the Tribe to remain a party for any reason. The juvenile court did not express any change in its decision that ICWA does not apply to the proceedings.


author: HILL, Chief Justice.

text:
    2003 WY 142
    Joshua L. McCARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-255.
    Supreme Court of Wyoming.
    Nov. 6, 2003.

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

[T1] Appellant, Joshia L. MeCard (McCard), appeals from the district court's order denying his motion to withdraw his plea of nolo contendere prior to the imposition of sentence. We will affirm, concluding that the district court did not abuse its discretion in denying that motion.

ISSUES

[¶2] McCard articulates this issue:

Did the district court abuse its discretion when it refused to grant [MecCard's] motion to [withdraw] his nolo contendere plea before sentencing?

The State reformulates the issue only slightly:

Whether the district court properly denied [MeCard's] pre-sentencing motion to withdraw his pleas.

FACTS AND PROCEEDINGS

[¶ 3] In an information filed in the district court on June 28, 2001, McCard was charged with two counts of sexual assault in the second degree. McCard, then age 21 years, was alleged to have twice inflicted sexual intrusion on the victim, who was then nine years old. These events occurred on the night of June 18, 2001. The victim reported the incidents to her mother the morning after they occurred. McCard was a live-in boyfriend to the victim's mother. MecCard waived his right to a preliminary hearing. He was represented by the public defender throughout the proceedings.

[¶ 4] On July 18, 2001, McCard was arraigned. He pleaded not guilty, and trial was set for September 17, 2001. McCard's trial was continued on several occasions. On April 25, 2002, he appeared in the district court for rearraignment, but that too was continued. McCard appeared again for rear-raignment (in essence a change of plea hearing) on May 3, 2002. At those proceedings the district court complied with W.R.Cr.P. 11. In accordance with a plea agreement, MecCard entered pleas of nolo contendere (no contest) to two counts of sexual assault in the third degree W.R.Cr.P. 11(1)(A). An updated presentence report was ordered by the district court, and McCard appeared for sentencing on August 9, 2002. At those proceedings he was represented by a new public defender, and a continuance was requested and granted.

[T5] McCard appeared for a second sentencing hearing on August 28, 2002, and again a continuance was requested and granted. On September 6, 2002, McCard again appeared before the district court for sentencing. Prior to that proceeding, McCard had filed a motion to withdraw his nolo contendere plea under W.R.Cr.P. 32(d). The asserted bases for the motion to withdraw were that McCard contended he was innocent of at least one of the crimes and that the pleas were not voluntary because of heavy-handed threats made by the prosecutor. McCard testified, describing those threats as coercive. He contended that the prosecutor intimidated him with the possibility that many more charges would be filed against him if he did not enter the plea. He also challenged the process because he was given only a few days to make a decision about the plea. Cross-examination of McCard seriously undermined the bases for withdrawal of his plea. Ultimately, the district court denied the motion for withdrawal and imposed the sentences agreed upon in the plea bargain.

STANDARD OF REVIEW

[T6] A district court's ruling on a motion to withdraw a guilty plea or a plea of nolo contendere is addressed to the sound discretion of the trial court.

A defendant does not enjoy an absolute right to withdraw a plea of guilty prior to the imposition of sentence. Osborn v. State, 672 P.2d 777, 788 (Wyo.1988), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984); Ecker v. State, 545 P.2d 641, 642 (Wyo.1976). The trial court is vested with discretion to determine whether to grant a motion to withdraw a plea of guilty made prior to sentencing, and it does not abuse that discretion by denying the withdrawal of the plea so long as the requirements of W.R.Cr.P. 11 were complied with at the time the plea was accepted. Kaldwell v. State, 908 P.2d 987, 990 (Wyo.1995). Even when the defendant provides a plausible or just and fair reason for withdrawal of the plea of guilty, the denial of the defendant's motion does not amount to an abuse of discretion if the trial court conducted a careful hearing pursuant to W.R.Cr.P. 11 at which the defendant entered a plea or pleas of guilty that was knowing, voluntary, and intelligent. Osborn, 672 P.2d at 778-79.

Stout v. State, 2001 WY 114, ¶ 8, 35 P.3d 1198, ¶ 8 (Wyo.2001) (quoting Nizon v. State, 4 P.3d 864, 868-69 (Wyo.2000)); and see Becker v. State, 2002 WY 126, ¶ 11, 53 P.3d 94, ¶ 11 (Wyo.2002) (for purposes of a review such as this, a plea of nolo contendere is functionally equivalent to a guilty plea).

[¶ 7] This standard of review has been further refined as follows:

A motion to withdraw a guilty plea, such as that filed here, is governed by W.R.Cr.P. 82(d) which provides that if a motion for withdrawal of a guilty plea is made before sentence is imposed, the court may permit withdrawal upon a showing by the defendant of any fair and just reason. A defendant has no absolute right to withdraw a plea of guilty before sentence is imposed, and where the strictures of W.R.Cr.P. 11 have been met, and the defendant intelligently, knowingly, and voluntarily entered into his plea of guilty, the district court's decision to deny such a motion is within its sound discretion. Burdine v. State, 974 P.2d 927, 9290-30 (Wyo.1999); 3 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d § 538 (1982 and Supp.2001). Seven factors have been suggested as pertinent to the exercise of the court's discretion: (1) Whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (8) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. 3 Wright, Federal Practice and Procedure: Criminal 2d § 588 (Supp.2001); United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir.2000).

Frame v. State, 2001 WY 72, ¶ 7, 29 P.3d 86, ¶ 7 (Wyo.2001).

[18] Furthermore, "[the findings of fact that led to denial of a motion to withdraw a guilty plea are subject to the clearly erroneous standard of review, while the decision to deny the motion is reversed only if it constituted an abuse of discretion." 8 Charles Alan Wright, Nancy J. King and Susan R. Klein, Federal Practice and Procedure: Criminal 2d § 538 (Supp.2008).

DISCUSSION

[19] We agree with McCard that it was his burden to show "any fair and just reason" before the district court was required to permit the withdrawal of his guilty plea. As the embarkation point for this analysis, we are compelled to conclude, from the record extant which we have carefully seruti-nized, that McCard entered his plea freely and voluntarily, and without the presence of coercion, threat or other undermining factor. If McCard had been able to demonstrate "any fair and just reason" for withdrawal of the plea, then the burden would shift to the State to demonstrate prejudice to its case. 3 Federal Practice and Procedure, supra, at 198-204 (1982).

[¶ 10] McCard intimates that the district court was not fully prepared to address the motion to withdraw, and that is suggestive of an abuse of discretion in and of itself. However, an examination of the record does not reveal any such failing on the part of the district court. The district court noted that it did not "realize" that the motion was to be considered at the sentencing hearing, but there is no suggestion in the record that the district court was other than fully prepared to address the issue.

[111] McCard next discusses the seven-part test set out above. First, McCard contends that he asserted his innocence. The record does not support that contention. McCard did not assert his innocence. Rather, he asserted that a videotaped statement taken from the victim did not prove the second of the two counts. In response to that assertion, the State countered that there was other evidence, independent of the videotape, which did go to prove the second count. There is a difference between an assertion of innocence and an assertion that the State lacks the requisite evidence to prove the charged crime. With respect to the second prong, McCard made no credible argument that the State would not be prejudiced by grant of the withdrawal. As noted above, it is his initial burden to demonstrate "any fair and just reason" for withdrawal, and only then is the State required to demonstrate the prejudice it may suffer. Third, MceCard entered his nolo contendere plea on May 3, 2002. His sentencing was originally scheduled for July 12, 2002, but was continued several times. It was not until August 5, 2002, just three days before the twice continued sentencing hearing was to be conducted, that McCard filed the motion to withdraw his plea. (Given these cireumstances, we conclude that MeCard's motion was not promptly filed. In addition, McCard's crime was committed in June of 2001, and he had acquiesced, or himself sought, the many continuances of the expeditious resolution of his case.

[¶ 12] As to the fourth prong, inconvenience to the court, the record is virtually silent. However, the lengthy history of these proceedings counsels that the district court might, indeed, have been inconvenienced by withdrawal of the plea at such a late date. Fifth, while McCard posits self-serving claims that he did not have close assistance of counsel, the record supports a conclusion that McCard was represented by a series of very competent public defenders. Sixth, as noted more fully above, the record unquestionably supports that the plea was knowing and voluntary. Seventh, and finally, the record suggests that the withdrawal of the plea would waste judicial resources.

[¶ 13] We conclude that McCard did not posit before the district court "any fair and just reason" or a "plausible" reason why he should have been permitted to withdraw his nolo contendere plea. Having failed in that regard, we need not further address the matter of prejudice to the State.

CONCLUSION

[T14] The district court's conclusion that McCard did not come forward with "any fair and just reason" for the withdrawal of his plea is not clearly erroneous, nor did the district court abuse its discretion in the processes at issue here. The judgment and sentence of the district court are affirmed.

      . Wyo. Stat. Ann. § 6-2-303(a) (LexisNexis 2003) (emphasis added) provides:
      § 6-2-303. Sexual assault in the second degree.
      (a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
      (i) The actor causes submission of the victim by threatening to retaliate in the future against the victim or the victim's spouse, parents, brothers, sisters or children, and the victim reasonably believes the actor will execute this threat. "To retaliate" includes threats of kidnapping, death, serious bodily injury or extreme physical pain;
      (ii) The actor causes submission of the victim by any means that would prevent resistance by a victim of ordinary resolution;
      (iii) The actor administers, or knows that someone else administered to the victim, without the prior knowledge or consent of the victim, any substance which substantially impairs the victim's power to appraise or control his conduct;
      (iv) The actor knows or should reasonably know that the victim submits erroneously believing the actor to be the victim's spouse;
      (v) At the time of the commission of the act the victim is less than twelve (12) years of age and the actor is at least four (4) years older than the victim;
      (vi) The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit; or
      (vii) The actor inflicts sexual intrusion in treatment or examination of a victim for purposes or in a manner substantially inconsistent with reasonable medical practices.

      . Wyo. Stat. Ann. § 6-2-304 (LexisNexis 2003) (emphasis added) provides:
      § 6-2-304. Sexual assault in the third degree.
      (a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:
      (i) The actor is at least four (4) years older than the victim and inflicts sexual intrusion on a victim under the age of sixteen (16) years; or
      ii) The actor is an adult and subjects a victim under the age of fourteen (14) years to sexual contact without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim;
      (ii) The actor subjects a victim to sexual contact under any of the circumstances of W.S. 6-2-302(a)@i) through (iv) or 6-2-303(a)G) through (vi) without inflicting sexual intrusion on the victim and without causing serious bod-fly injury to the victim.


text:
    2003 WY 144
    James Martin HARLOW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    Nos. 99-58, 99-59, 99-60.
    Supreme Court of Wyoming.
    Nov. 7, 2003.
   ORDER CONTINUING STAY OF EXE-CUTHION OF SENTENCE PENDING DISPOSITION OF STATE POST-CONVICTION RELIEF PROCEEDING

Pursuant to the terms of this Court's ORDER ISSUING MANDATE, SETTING NEW DATE FOR EXECUTION OF SENTENCE, AND STAYING EXECUTION OF SENTENCE PENDING FURTHER PROCEEDINGS entered May 29, 2003, counsel for James Martin Harlow filed her CASE STATUS REPORT in this Court on October 24, 2008, informing this Court that, among other things, the United States Supreme Court denied Mr. Harlow's petition for a writ of certiorari by order entered on October 20, 2008 (Attachment A).

In her CASE STATUS REPORT, Mr. Harlow's counsel further informs this Court that Mr. Harlow, through counsel, intends to timely file a petition for post-conviction relief pursuant to Wyo. Stat. Ann. §§ 7-14-101 through 108 (LexisNexis 2008) on or before December 7, 2008, and, therefore, Mr. Harlow, through counsel, requests that the current stay of execution of sentence under this Court's order of May 29, 2003, be continued pending the filing and during the pendency of that state post-conviction relief proceeding.

In addition, in her CASE STATUS REPORT, Mr. Harlow's counsel informs this Court that, depending upon the outcome of Mr. Harlow's state post-conviction relief proceeding, Mr. Harlow intends to seek federal habeas corpus relief in federal court pursuant to 28 U.S.C. § 2254 and, therefore, Mr. Harlow, through counsel, requests that this Court also continue the current stay of execution of sentence under this Court's order of May 29, 2008, pending the filing and during the pendency of Mr. Harlow's pursuit of federal habeas corpus relief.

Having carefully considered Mr. Harlow's requests to continue the current stay of execution of sentence, this Court considers it inappropriate to enter an order of stay as broad as Mr. Harlow seeks. This Court has determined that the better practice at this time is to enter its order continuing the current stay of execution of sentence pending the filing and during the pendency of Mr. Harlow's state post-conviction relief proceeding. This Court shall further order Mr. Harlow's counsel to promptly inform this Court and the State of Wyoming of counsel's timely filing of Mr. Harlow's petition for state post-conviction relief and of the state district court's disposition of said petition. Upon the state district court's disposition of said petition, this Court may make such further order as may then appear to be necessary and appropriate.

It is, therefore, ORDERED that the stay of execution of sentence under this Court's order of May 29, 2008, be, and it is hereby continued pending the filing and during the pendency of Mr. Harlow's state post-convietion relief proceeding;

It is further ORDERED that Mr. Harlow's counsel promptly notify this Court and the State of Wyoming of counsel's timely filing of Mr. Harlow's petition seeking state post-conviction relief and of the state district court's disposition of said petition;

It is further ORDERED that this order be published in Pacific Reporter Third.

Justices GOLDEN, LEHMAN, and VOIGT; and Judges SULLINS and BURKE sitting by appointment


author: VOIGT, Justice.

text:
    2003 WY 143
    Kevin J. PENNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-184.
    Supreme Court of Wyoming.
    Nov. 7, 2003.

      Representing Appellant: Kenneth M. Ko-ski, Public Defender; and Donna D. Domon-kos, Appellate Counsel.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Kerry Gaines, Student Intern.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] This is an appeal from the restitution ordered in a burglary case. We reverse and remand for deletion of the restitution order from the judgment and sentence because the order included restitution for crimes to which the appellant did not plead guilty or nolo contendere or admit to having committed, and did not include restitution for the crime to which the appellant did plead.

ISSUE

[¶2] Did the district court abuse its discretion or commit procedural error by ordering the appellant to pay restitution for crimes to which he did not plead guilty or nolo contendere or admit to having committed?

FACTS

[T3] On December 28, 2001, the appellant, Kevin J. Penner, was charged with three counts of burglary. Although the Information did not identify any victims or locations, the Affidavit in Support of Information detailed burglaries at three businesses-Minute Man Muffler, Six States Distributors, and Baker Tools-and mentioned a fourth at Weatherford Lamb. At arraignment, the appellant pled not guilty to all three counts.

[T4] A change-of-plea hearing took place several months after the arraignment, during which hearing the following oral plea agreement was announced, in pertinent part:

[DEFENSE COUNSEL]: Your Honor, contingent on Mr. Penner's expected plea, I guess the counts are all identical, so I guess [he would plead] to count one, [and] countsf ] two and three would be dismissed. His plea would be that of nolo contendere, your Honor. I'm sorry. He would receive a sentence of not less than two years nor more than four years at the Wyoming State Penitentiary. He would pay the mandated hundred dollars to the crime victims fund. The issue of public defender-
THE COURT: Ten dollars court costs.
[DEFENSE COUNSEL]: Yes, your Honor, I'm sorry.
THE COURT: Court automation fee.
[DEFENSE COUNSEL]: Your Honor, he would-the court-probably restitution, and there's public defender fees. I would ask the court to make a finding that my client lacks the ability to pay those, given his six months of prior incarceration unemployment at that time, I guess at a minimum of approximately 18 months of future incarceration. But that was not agreed upon so the state's certainly free to ask for restitution.

(Emphasis added.) As a factual basis for the plea, the prosecutor referred to the facts set forth in the Affidavit in Support of Information and identified the vietim of the count to which the plea was entered as being Minute Man Muffler.

[¶5] The presentence investigation report (PSI) was prepared before the change-of-plea hearing was held, and it contained a description of all the burglaries mentioned in the Affidavit in Support of Information. However, the PSI contained no restitution information and indicated only that victim impact statements would be provided as addenda when received.

[¶6] At the subsequent sentencing hearing, defense counsel stated "we're waiving public defender fees due to the inability to pay," and "restitution we wanted to discuss and argue with the court." The State then submitted an exhibit, to which were attached numerous invoices, listing the following restitution amounts:

Jason Kirk $6,188.69
343.58 Weatherford Lamb
Cilensek Construction 1,000.00
Richard Crouch 732.00
TOTAL $7,955.07
Minute Man (John and Jeff Grossnickle) had over $15,000.00 in restitution. However, there was no paperwork submitted by the victims.

STANDARD OF REVIEW

[17] We recently reiterated our standard of review of restitution orders:

Appellate review of ordered restitution is confined to a search for procedural error or a clear abuse of discretion. Aldridge v. State, 956 P.2d 341, 343 (Wyo.1998). The amount of restitution fixed by the trial court should be supported by evidence sufficient to afford a reasonable basis for estimating the loss. Hilterbrand v. State, 930 P.2d 1248, 1250 (Wyo.1997). A challenge to the amount of restitution set by the court must demonstrate an abuse of discretion. "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Brock v. State, 967 P.2d 26, 27 (Wyo.1998) (quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)). We have held that a victim impact statement, such as that incorporated into the Presentence Report in this case, is credible evidence upon which a trial court may impose a restitution amount. Stowe v. State, 10 P.3d 551, 553 (Wyo.2000).

Brown v. State, 2003 WY 72, ¶ 9, 70 P.3d 238, 241 (Wyo.2003). As explained in Merkison v. State, 996 P.2d 1138, 1141 (Wyo.2000) (emphasis in original), however, there is a distinction between the standard of review of factual challenges to the amount of restitution ordered and challenges to the authority of the court to make a restitution award:

The distinction between whether a defendant is making a factual challenge to an order of restitution or whether he is challenging the authority of the trial court to make a particular award of restitution is an important one. Challenges to the factual basis of an award of restitution can be waived in certain cireumstances by the defendant's voluntary actions, such as entering into a plea agreement, and then failing to make any objection at sentencing, as occurred in Meerscheidt [v. State, 931 P.2d 220 (Wyo.1997) ]. See also Aldridge v. State, 956 P.2d 341, 348 (Wyo.1998). Outside the context of a plea agreement, the failure to object to a factual determination in the awarding of restitution results in an appellate review for plain error. See Gayler v. State, 957 P.2d 855, 857 (Wyo.1998). In contrast, a challenge by a defendant to the authority of a trial court to make a particular award of restitution is reviewed on appeal under a de novo statutory interpretation standard whether or not the defendant objected or entered into a plea agreement. Meerscheidt, 981 P.2d at 228-224, 226-227. While not explicit in our decision in Meerscheidt, the reason for conducting a de movo review under such cireumstances is that a court has only that authority to act which is conferred by the subject statute.

DISCUSSION

[¶ 8] The legislature has created a clear mandate and procedure for the collection of restitution in criminal cases in Wyoming. As part of sentencing, "the prosecuting attorney shall present to the court any claim for restitution submitted by any victim." Wyo. Stat. Ann. § 7-9-108(a) (LexisNexis 2008). In turn, the court is to "order a defendant to pay restitution to each victim ... unless the court specifically finds that the defendant has no ability to pay...." Wyo. Stat. Ann. § 7-9-102 (LexisNexis 2008). A "victim" is defined as "a person who has suffered pecuniary damage as a result of a defendant's criminal activities." Wyo. Stat. Ann. § 7-9-10l(a)(v) (LexisNexis 2008). And finally, "criminal activity" means "any crime for which there is a plea of guilty, nolo conten-dere or verdict of guilty upon which a judgment of conviction may be rendered and includes any other crime which is admitted by the defendant, whether or not prosecuted." Wyo. Stat. Ann. § 7-9-101(a)(1) (emphasis added).

[19] This statutory language leads directly to the problem in this case. The victim of the burglary to which the appellant pled nolo contendere, and for which he was convicted, submitted no restitution information to the prosecuting attorney for presentation to the district court. Consequently, the district court did not order restitution paid to that victim. Instead, all of the ordered restitution was directed to the victims of the burglaries that were dismissed as part of the plea agreement.

[¶ 10] The appellant contends that he did not admit the crimes to which he did not plead nor did he explicitly agree to pay restitution for those crimes. The State responds that the only rational understanding of what happened at sentencing-the appellant's failure to object to the fact or amounts of such restitution-is that the appellant had, as part of the plea agreement, agreed to pay those amounts. Clearly, this is not a question of statutory construction to which a de novo standard of review applies. Rather, the question is whether there was procedural error or an abuse of discretion.

[¶ 11] This case first went awry at the change-of-plea hearing when the orally announced plea agreement did not indicate whether the appellant would admit the charges that were being dismissed or would agree to pay restitution for those crimes. This error was compounded at the sentencing hearing when the district court imposed the restitution order without obtaining that information. The record simply contains no admission of those crimes or express agreement to pay those amounts, and we are not at liberty in reviewing criminal sentencing proceedings to draw from a blank record inferences that are contrary to the appellant's interests.

CONCLUSION

[¶ 12] The record does not show that the appellant admitted the crimes to which he did not plead or that the plea agreement included his agreement to pay restitution for those crimes. The district court committed procedural error by including that restitution in the judgment and sentence. The State is not entitled to a second opportunity to prove restitution, so we reverse and remand for deletion of the restitution order from the judgment and sentence. Van Riper v. State, 999 P.2d 646, 648 (Wyo.2000). Upon remand, the district court should also make the appropriate findings as to the appellant's ability or inability to pay public defender fees, as required by Wyo. Stat. Ann § 7-6-106 (Lexis-Nexis 2003).

      . As an aside, we would note that public defender fees do not belong to the public defender's office and cannot simply be waived. The Public Defender Act, Wyo. Stat. Ann. §§ 7-6-101-7-6-114 (LexisNexis 2003) and W.R.Cr.P. 44 contemplate a judicial determination of inability to pay. In the instant case, the district court based its decision not to order the payment of public defender fees on this waiver rather than upon the required determination of ability to pay.

      2. The amount attributed to Jason Kirk is not, within the hearing transcript or the record, related to a particular victim. The amounts listed for Cilensek Construction and Richard Crouch are related to the Six States Distributors burglary. The fact that the total figure is incorrect was later duly noted by the district court.

      . The prosecutor explained to the district court that the victim did not submit restitution information because he did not believe he would get anything out of the appellant.

      . The $1,000.00 figure allocated to Cilensek Construction was not ordered because no substantiating documentation was submitted.