author: THOMAS, Justice.

text:
    In the Matter of the ESTATE OF: Glenn A. SORENSON, Deceased. Jeff Sorenson, Appellant (Petitioner), v. Brett Sorenson, Appellee (Respondent). Jeff Sorenson, Appellant (Defendant), v. Brett Sorenson, Appellee (Plaintiff).
    Nos. 99-249, 99-267.
    Supreme Court of Wyoming.
    July 27, 2000.
    Representing Appellant: Paul J. Drew of Drew & Carlson, LLC, Gillette, Wyoming.
    Representing Appellee: Hardy H. Tate, Sheridan, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   THOMAS, Justice.

Onee again this Court is confronted with a disagreement between siblings arising out of a devise from their father. Glenn Sorenson, the deceased father (the father), devised ranch lands to his sons, Jeff Sorenson (Jeff) and Brett Sorenson (Brett), "in equal shares, as tenants in common[.]" The father's Last Will and Testament included a restriction upon alienation, described as a condition subsequent, which prescribed divestiture as the penalty for violation. After the father's estate was distributed, Brett commenced an action seeking partition of the ranch property and also claiming that an earlier lease from the father to Jeff was void. Jeff filed an answer and counterclaim asserting that the partition action violated the condition subsequent, and he also alleged that the attempt to challenge the lease violated an "in terrorem" clause that was included in the father's will. The district court ruled that the common law and Wyoming statutes justified the partition action despite the language in the will, and granted Brett's motion for summary judgment on Jeffs claim that Brett's petition for partition violated the condition subsequent.

In the estate matter, Jeff filed a Petition to Reopen Estate seeking to have amended the Decree of Partial Distribution or the final Decree of Distribution to incorporate the condition subsequent and the "in terrorem" clause from the father's will. The district court ruled that its holding with respect to the partition action made irrelevant any effort to reopen the estate to add the condition subsequent or "in terrorem" language to the Decree of Distribution, and that the withdrawal by Brett of the challenge to the lease, in effect, made moot any ruling on the application of the "in terrorem" clause.

Jeff has appealed the Order Granting Plaintiff's Motion for Summary Judgment on Defendant's Counterclaim entered in favor of Brett and the Order Denying Motion to Reopen Estate. We affirm, albeit on different grounds than those relied upon by the district court.

Jeff, by his Brief of Appellant, presents this statement of the issues:

I. Is the devise of real property to the parties subject to the condition subsequent in the decedent's will?
II. Is the devise of real property to the parties subject to the in terrorem clause in the decedent's will?
III. Did the probate judge err in refusing to reopen the probate for the purpose of accurately describing the property interests devised to the parties?

The issues presented in the Brief of the Appellee filed by Brett are:

I. Is the final decree of distribution following probate res judicata on the nature of a real property interest held by the devisees of a will or must a final decree of distribution be forever read in conjunction with the will?
II. Do any of the claims of the appellant Jeff Sorenson state a cause upon which relief can be granted?

The father owned a ranch in Sheridan and Johnson counties, known as "The Powder River Place," which encompassed approximately 2,485 acres on which was a ranch house, barn, and other outbuildings and improvements. In 1994, the father leased most of his ranch to Jeff for a term of ten years, with an option to renew the lease for another ten years. On June 20, 1997, the father executed his Last Will and Testament, in which he made this devise:

Article 5. Subject to the foregoing Article [Article 4 - providing for the distribution of certain items of personal property according to a list made by the father], I hereby make the following specific bequests:
A. To my sons in equal shares, as tenants in common, I give and devise all of my right, title, and interest in and to my ranch, known commonly as "The Powder River Place," as their sole and separate property, subject to the following restrictions:
For a period of twenty years following the date of my death, neither of my sons may individually, sell, lease, encumber, or otherwise divest himself, whether voluntarily or involuntarily, of any incidents of ownership in the surface interest of this property to any person or entity, other than to the other of my sons. Provided, however, that both of my sons, acting together, so long as neither of them is acting under any form of duress or compulsion, may sell, lease, or encumber the surface interest in this property to a third person. The foregoing restriction is a condition subsequent and immediately upon violation of any aspect of it, the title of the violating devisee to said property shall immediately terminate, and the terminated interest shall immediately become vested in my other son, so that he shall hold title to this property as his sole and separate property in fee simple absolute. In the event that either of my sons shall die before the termination of the twenty year period, those persons who are entitled to his interest by virtue of inheritance or devise shall be bound by the foregoing provision, and no sale or lease of the surface estate shall be permitted without their prior unanimous consent.

The will also contained an "in terrorem" clause that read:

Article 8. In the event that any legatee, devisee, or beneficiary of this my LAST WILL AND TESTAMENT, for whose benefit I have made any provision, shall endeavor in any way to contest in any court, or before any tribunal, or in any other forum, this my LAST WILL AND TESTAMENT, or the validity thereof, or its due or proper execution, or the provisions or distributions applicable to him or her, or any other provision or distribution, or shall in any manner question any acts in making this will or any of its provisions, or of any other form of gift or conveyance made outside of this will, then and in that event, such contestant shall thereupon forever forfeit, and shall thenceforth cease to have any right, title, or interest in, under, or to any portion of my estate or any property or interest in property devised or bequeathed to such person, or any income therefrom, and all provisions of this my LAST WILL AND TESTAMENT in favor of, or for the benefit of, such contestant are hereby absolutely and forever revoked, and any and all rights which said contestant would otherwise have had shall fall into and become a part of the residue of my estate referred to above, and shall be disposed of as provided above, to the absolute exclusion of such contestant in the same manner as if such contestant had been specifically disinherited in this my LAST WILL AND TESTAMENT. This provision shall be liberally construed to include, but is not in any way limited to, any form of harassment, abuse, molestation, or intimidation of the Personal Representative or of any other beneficiary, devi-see, or legatee, or any attempt whatsoever to interfere with the peaceful use and enjoyment of any property or interest in property left or given to any such benefi-clary by me, whether such property or interest in property is left to that benefi-clary by way of this will or otherwise, including, but not limited to, any outright gift of property or joint ownership of property held by myself and anyone else with a right of survivorship.

(Emphasis in original.)

The father died on July 15, 1997, and his will was promptly admitted to probate with Jeff appointed as the personal representative, in accordance with the father's will. On June 1, 1998, Jeff and Brett reached an agreement styled Order Approving Final Report and Accounting, and Decree of Partial Distribution. That order stated that the ranch was "to be distributed to Jeff L. Sor-enson and Brett Sorenson in equal shares as tenants in common|[.]" The order made no mention of the condition subsequent or the "in terrorem" clause included in the father's will.

Brett filed a Complaint for Partition of Real Property and Other Relief on December 10, 1998, in which he asked the district court to either partition the ranch or force a sale of the ranch and divide the proceeds pursuant to Wyo. Stat. Ann. §§ 1-32-101 through 1-32-122 (Lexis 1999). He later filed an Amended Petition for Partition of Real Property and Other Relief, which omitted the alternative request for a forced sale. In both the original and amended petitions, Brett asked the district court to void the father's lease to Jeff as unconscionable in its terms and not entered into willingly and knowingly by the father, and because the father lacked contractual capacity. Jeff filed an Answer in which he included a Counterclaim asserting claims that the partition action violated both the condition subsequent and the "in terro-rem" clause of the father's will and sought to have title to the ranch quieted in him. After filing his Answer to Counterclaim, Brett presented a Motion for Summary Judgment on Jeffs counterclaim.

While the Motion for Summary Judgment was pending, Jeff filed a Petition to Reopen Estate in the probate matter, in which he sought to have the condition subsequent and the "in terrorem" clause of the father's will included in an amended decree of distribution. The district court issued a single deci-gion letter resolving in Brett's favor both the summary judgment motion and the petition to reopen the estate. In that letter, the district court reported that, in the hearing on May 26, 1999, Brett no longer disputed validity of the lease between Jeff and their father. Separate orders later issued. In the probate matter, the district court entered the Order Denying Motion to Reopen Estate, and in the partition action the district court entered the Order Granting Plaintiffs Motion for Summary Judgment on Defendant's Counterclaims in which Brett was authorized to prosecute his partition action; Jeffs counterclaims were denied with the provision that the order operate as a final judgment on the counterclaims pursuant to W.R.C.P. 54(b); and the lease was declared to be valid and enforceable. Jeff timely appealed both of those orders.

We begin by addressing the summary judgment order. Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56, University of Wyoming v. Gressley, 978 P.2d 1146, 1153 (Wyo.1999). We review grants of summary judgment de movo upon the same record that was before the trial court. Gressley, 978 P.2d at 1158. We consider the record in the light most favorable to the party opposing the motion, and give that party the benefit of all favorable inferences that may fairly be drawn from the record. Id. We can affirm a grant of summary judgment on any legal grounds appearing in the record. Id. It may well be true, as the district court stated in its opinion letter, that a legal axiom exists to the effect that "[njo person can be compelled to remain a co-tenant." This Court has said:

No person is compelled to remain a coten-ant of another. That was the rule of the Roman Law.Code Justinian 3, 37, 5. That, with few exceptions, is the rule of the Common Law. 47 C.J. 288. And that is the rule under our statute. Section 3-6901 and Section 6-2317, Wyo.Comp.St.1945.

In re Dizon's Estate, 66 Wyo. 197, 218, 207 P.2d 510, 515 (1949). The parties have vigorously debated the propriety of preferring that axiom over the expressed intention of the father in his will. As this case comes before us, we can discern no reason to resolve that debate.

Jeff first argues that Brett's partition action violated the will's restrictions on alienation because the ultimate remedy in partition is a forced sale. A forced sale to a third party could violate the restrictions in the father's will, but we hold that Jeff's Amended Petition for Partition of Real Property and Other Relief did not invoke the condition subsequent. Pertinent statutes provide:

§ 1-32-109. Appraisement required where estate cannot be divided according to writ; return by commissioners; election to take at appraised value.
When the commissioners are of the opinion that the estate cannot be divided according to the demand of the writ without manifest injury to its value, they shall return that fact to the court with a just valuation of the estate. If the court approves the return and one (1) or more of the parties elects to take the estate at such appraised value, it shall be adjudged to him upon his paying to the other parties their proportion of the appraised value according to their respective rights, or securing the same as hereinafter provided.
§ 1-32-110. Terms of payment upon election to take; execution of conveyance.
If one (1) or more of the parties elects to take the estate at the appraised value, unless the court for good cause directs the entire payment to be made in cash, or unless all the parties in interest agree to different terms, the terms of payment shall be one-third (%) cash, one-third (%) in one (1) year and one-third (%) in two (2) years, with interest, the deferred payments to be secured to the satisfaction of the court. On payment in full or in part with sufficient security for the remainder, the sheriff shall make and execute a conveyance to the party electing to take the same according to the order of the court.
§ 1-32-111. Order for sale of estate in absence of election to take.
If no election to take the estate at the appraised value is made, at the instance of a party the court may order the sale thereof at public auction by the sheriff who executed the writ of partition or his successor.

The statutory scheme makes it clear that the appointed commissioners must endeavor to make an equitable division of the property. Wyo. Stat. Ann. $ 1-32-106. If that is not possible, the statute then provides for an appraisal and an election by a party or parties to take the estate at the appraised value. Wyo. Stat. Ann. § 1-82-109. If no party elects to take the estate at the appraised value, the district court can order a forced sale only "at the instance of a party * * *." Wyo. Stat. Ann. § 1-82-111. In his amended petition, Brett did not ask the district court to force a sale of the land. Since Brett did not seek a forced sale, his partition action does not violate the condition subsequent set forth in the will. In fact, the father's will specifically permits a conveyance between Jeff and Brett, and permits them to join in a conveyance to a third party:

For a period of twenty years following the date of my death, neither of my sons may individually, sell, lease, encumber, or otherwise divest himself, whether voluntarily or involuntarily, of any incidents of ownership in the surface interest of this property to any person or entity, other than to the other of my sons. Provided, however, that both of my sons, acting together, so long as neither of them is acting under any form of duress or compulsion, may sell, lease, or encumber the surface interest in this property to a third person.

(Emphasis added.) It is clear that the mere initiation of a partition action does not conflict with the condition subsequent in the will because it could lead either to a retention of separate interests by the two sons or a conveyance from one to the other.

Jeff next contends that Brett violated the "in terrorem" clause of the father's will by contesting his lease. He specifically points to the language revoking any bequest to a devisee that "shall in any manner question any acts in making this will or any of its provisions, or of any other form of gift or conveyance made outside of this will[.]" Brett responds that the "in terrorem" clause was no longer effective when he sought to have the lease voided because it was not incorporated into the decree. We eschew the arguments of both parties, and hold that Brett's challenge to the lease was ineffica-clous because he withdrew it before it required a ruling by the district court. Brett, therefore, was entitled to judgment as a matter of law.

In denying Jeffs petition to reopen the estate, the district court said that the omission of the restrictions in the decree was irrelevant. Jeff had sought to have the decree amended to include the condition subsequent and the "in terrorem" clause from the will. Having determined that Brett neither insisted on a forced sale upon partition nor prosecuted, after pleading, a challenge to the lease, we hold that including the desired language in the decree would have no bearing on the outcome of this matter.

We affirm the judgment of the district court.

      . The pertinent statutes provide:
      § 1-32-101. Who compelled to make partition.
      Tenants in common and coparceners of any estate of lands, tenements or hereditaments within the state may be compelled to make a partition thereof as hereinafter prescribed. § 1-32-102. Where proceedings to be had.
      When the estate is situated in one (1) county the proceedings shall be had in that county, and when situated in two (2) or more counties the proceedings may be had in any county in which a part of the estate is situated. § 1-32-103. Filing and contents of petition.
      A person entitled to partition of an estate may file his petition in the district court setting forth the nature of his title, a description of the lands, tenements or hereditaments of which partition is demanded, and naming each tenant in common, coparcener or other interested person as defendant.
      § 1-32-104. Finding of court; order for partition; appointment of commissioners; ordering writ of execution to issue.
      If the court finds that the plaintiff has a legal right to any part of the estate, it shall order partition in favor of the plaintiff or all parties in interest, appoint three (3) disinterested persons of the vicinity to be commissioners to make the partition and order a writ of execution to issue.
      § 1-32-105. Writ of partition directed to sheriff; contents; administering oath to commissioners.
      The writ of partition may be directed to the sheriff of any county in which any part of the estate lies, and shall command him to administer the oaths of the commissioners, and setoff and divide to the plaintiff or each party in interest such part and proportion of the estate as the court shall order.
      § 1-32-106. View and examination of estate by commissioners; setting aside under oath.

        In making the partition, the commissioners must examine the estate and set apart the same in such lots as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts.


source: Caselaw Access Project

license: Public Domain

text:
    Vecenta OROSCO and Candice Rae Orosco, Appellants (Plaintiffs), v. Gregory SCHABRON, Appellee (Defendant).
    No. 99-244.
    Supreme Court of Wyoming.
    July 27, 2000.
    Representing Appellants: Carrie Hesco and E. James Burke of Burke, Woodard & O'Donnell, P.C., Cheyenne, Wyoming.
    Representing Appellee: Kay Lynn Bestol of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   THOMAS, Justice.

This case calls upon the Court to determine if the circumstances surrounding a shortfall in representation by counsel oblige a district court to accord relief, pursuant to W.R.C.P. 60(b), from a dismissal of an action with prejudice. Vecenta Orosco and Candice Orosco (the Oroscos) brought an action against Gregory Schabron (Schabron) to recover for personal injuries they sustained in an automobile collision. After efforts by Schabron to obtain discovery from the Oros-cos, which elicited no response from counsel, Schabron sought and obtained an Order on Motion to Compel. That order warned the Oroscos of sanctions, including dismissal, if they did not "respond in full to Defendant's discovery requests by March 12, 1999(.]" The Oroseos did not respond, Schabron filed a Motion for Sanctions, and the district court entered an Order of Dismissal with Prejudice. The Oroscos apparently knew nothing of the discovery efforts, and only learned about the situation when their case was dismissed. They engaged other counsel who filed a Motion for Relief from Order of Dismissal with Prejudice, invoking the provisions of W.R.C.P. 60(b). After receiving memoranda from counsel and conducting a hearing, the district court entered an Order Denying Plaintiffs' Motion for Relief from Order of Dismissal with Prejudice. We have serutinized the record, seeking some premise that would persuade this Court that the district court committed an abuse of discretion, but we have found none. The Order Denying Plaintiffs' Motion for Relief from Order of Dismissal with Prejudice is affirmed.

The Brief of Appellant, filed on behalf of the Oroscos, states the issue in this way:

I. Did the District Court abuse its discretion by refusing to grant Plaintiffs' Rule 60(b) motion to set aside the dismissal with prefudice of their personal injury action despite undisputed evidence that Plaintiffs' attorney suffered from a disorder which caused him to neglect their case and ignore court orders without knowledge or fault of Plaintiffs.

The Appellee Brief, filed for Schabron, frames the issue as:

After the trial judge dismissed the case for failure to obey discovery orders, the Plaintiffs/Appellants moved for relief from the dismissal under Rule 60(b)(6), based on their chosen attorney's undiagnosed emotional incapacity to fulfill his obligations to the Court and the parties. They presented their attorney's unsupported, self-serving, inconsistent affidavit to support their claim of incapacity. Did the Court abuse its discretion when it refused to grant extraordinary Rule 60(b) relief on this basis?

We draw upon the facts articulated by the district court in its decision letter dated July 19, 1999. The district court reported the material facts in the following fashion:

This is a personal injury action arising out of an automobile accident on August 13, 1994. Plaintiffs apparently retained counsel [name omitted] a few months after the accident and on August 12, 1998, one day before the expiration of the Statute of Limitations, suit was filed. An Answer was duly filed and written discovery undertaken by Defendant.
A scheduling conference was conducted with the Court on January 7, 1999 with counsel present. It was noted at that time that discovery had been propounded to Plaintiffs but that no responses had been provided. Counsel for Plaintiffs was advised informally to respond to the discovery promptly. On February 3, 1999 Defendant filed a Motion to Compel. Responses to Defendant's Interrogatories and Requests for Production were by then more than two months overdue. The matter was set for hearing on February 19, 1999, and a Notice of Setting was sent to [counsel for plaintiffs] on February 5, 1999. Hearing was conducted as per the notice on February 19, 1999. [Counsel for plaintiffs] made no appearance on behalf of Plaintiffs.
On February 22, 1999 the Court entered its order on Defendant's Motion to Compel. The Order provided that Plaintiffs should respond to the discovery on or before March 12, 1999 and that the Court would entertain a Motion for Sanctions, including dismissal, if Plaintiffs failed to comply. A copy was duly forwarded to [counsel for plaintiffs] on the same day. On March 17, 1999, Defendant filed a Motion for Sanctions. Plaintiffs had not complied with the Court's Order of February 22, 1999. A Notice of Service was also filed in which Plaintiffs were provided ten (10) days to object to the Defendant's request for dismissal of the action. Both documents were duly served on [counsel for plaintiffs]. No objection was fortheom-ing, and on April 15, 1999 the Court entered its Order dismissing Plaintiffs' Complaint with prejudice. Plaintiffs thereafter retained new counsel [new counsel for plaintiffs]. (The Court notes that [original counsel for plaintiffs] has never asked or been permitted to withdraw as counsel of record in this matter.)
[New counsel for plaintiffs] filed a Motion for Relief from Order of Dismissal on May 28, 1999 pursuant to Rule 60(b), W.R.C.P. In essence, Plaintiffs assert that they were unaware of any discovery problems; that they had not been asked to provide any discovery materials by [original counsel for plaintiffs]; that [original counsel for plaintiffs] had repeatedly advised them that the case was proceeding normally; and that they were unaware that the case might be dismissed until after the fact. Also included with the Motion was an Affidavit by [original counsel for plaintiffs] in which he asserts that, in effect, he suffers from an undiagnosed physical malady which makes it difficult or impossible for him to comply with "strict guidelines." He apparently never advised Plaintiffs of his condition, suggested they retain other counsel or advised them of pending discovery or motions. Defendant asserts that none of this is his fault; that Plaintiffs failed to comply with the orders of the Court and the Rules of Civil Procedure; and that the case was dismissed only after repeated warnings and opportunities to comply. They assert Plaintiffs' remedy now lies against [original counsel for plaintiffs], not Defendant.

The Oroscos appealed from the Order Denying Plaintiffs' Motion for Relief from Order of Dismissal with Prejudice, which they described as the final judgment of the district court. Clearly, the Oroscos recognized that the time for appeal from the Order of Dismissal with Prejudice expired on May 16, 1999, and no appropriate motion was filed that would toll the thirty day period for filing the notice of appeal. W.R.A.P. 2.01 and 2.02.

In pertinent part, W.R.C.P. 60(b) provides:

On motion, and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; * * * (6) any other reason justifying relief from the operation of the judgment.

We have stated, with respect to our review of a denial of a motion submitted pursuant to W.R.C.P. 60(b):

We review the ruling of a trial court on motions presented pursuant to Wyo. R. Civ. P. 60(b)(1) and (6) only for an abuse of discretion. Vanasse [v. Ramsay], 847 P.2d [993] at 996 [(Wyo.1998)]; Carlson v. Carlson, 886 P.2d 297, 301 (Wyo.1992); U.S. Aviation, Inc. v. Wyoming Avionics, Inc., 664 P.2d 121, 126-27 (Wyo.1988). Essentially the resolution of such motions is left to the sound discretion of the trial court, as defined in Martin v. State, 720 P.2d 894, 897 (Wyo.1986):
"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."

Lee v. Sage Creek Refining Co., 947 P.2d 791, 793 (Wyo.1997). We have recognized that in order to be entitled to relief under W.R.C.P. 60(b), the party seeking relief must demonstrate (1) a lack of culpable conduct; (2) a meritorious claim; and (8) a lack of prejudice to the appellee. Vanasse v. Ramsay, 847 P.2d 993, 998 (Wyo.19983) (quoting Carlson v. Carison, 836 P.2d 297, 301-02 (Wyo.1992)). It is clear from the tenor of the decision letter from the district judge that he was aware of the equitable concerns surrounding the matter before the court, and that the district judge had carefully considered the law.

The Oroscos contend that they have demonstrated all three of the Vanasse factors. They assert that there was no culpable conduct relating to the failure to respond to Schabron's discovery requests because the lack of diligence on the part of their attorney was attributable to severe personal, physical and psychological problems. They also point out that the attorney did not inform them of the discovery requests or the Motion to Compel, misled them, and assured them that their case was progressing in an appropriate manner. They contend that the circumstances clearly demonstrate a meritorious claim, and that there is no demonstration of any prejudice to Schabron.

Schabron asserts that the Oroscos have not satisfied any of the Vanasse factors. He contends that the affidavit from the original attorney is insufficient to support a claim of incapacity, and that the Orogseos must assume responsibility for the action, or inaction, of the attorney whom they chose as their agent.

The district court correctly ruled that Wyoming requires the demonstration of an exceptional cireumstance specified in W.R.C.P. 60(b) in order to have a judgment vacated. Sanford v. Arjay Oil Co., 686 P.2d 566, 570 (Wyo.1984). The district court considered the prospect for relief under W.R.C.P. 60(b)(1) because of mistake, inadvertence, surprise or excusable neglect, and denied relief after considering all of the circumstances and the policy of holding clients accountable for the acts and omissions of their attorneys (Link v. Wabash R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). In Link, the Supreme Court of the United States stated, "[pletitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent." Link, 370 U.S. at 633-34, 82 S.Ct. 1386. This Court has recognized that the relationship between an attorney and a client is that of principal and agent. Stricker v. Frauendienst, 669 P.2d 520, 522 (Wyo.1983). After reviewing the cireumstances, the district court correctly ruled that the Oroscos had not demonstrated any excusable neglect, nor mistake, inadvertence or surprise.

This Court has recognized that, "[rle-lief is available under Rule 60(b)(6) when the personal problems or psychological disorders of an attorney cause him to neglect a case to the extent that a default or summary judgment is entered against the unsuspecting client." Sanford, 686 P.2d at 571. The year after Sanford was decided, we were represented with an analogous problem in Hochhalter v. Great Western Emterprises, Inc., 708 P.2d 666 (Wyo.1985). In that case, Hochhalter requested relief from a default judgment under W.R.C.P. 60(b), alleging that the negligence of his attorney was due to personal and psychological problems. Hochhalter, 708 P.2d at 668. Hochhalter filed, in support of this claim, his affidavit in which he stated that the attorney had separated from his wife and relocated his practice. Id. at 669. We held that "bare statements are insufficient to justify relief under Rule 60(b)(6), and we cannot hold that refusing to grant relief under the rule in reliance upon this scanty evidence is sufficient to constitute an abuse of discretion by the trial court." Hochhalter, 708 P.2d at 669. We continued by ruling that the gross negligence of counsel was not sufficient to support a claim under W.R.C.P. 60(b), and stated:

"There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and. he cannot now avoid the consequences of the acts or omissions of this freely selected agent, Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.! * * *"

Hochhalter, 708 P.2d at 670 (quoting Link, 370 U.S. at 633-34, 82 S.Ct. 1386).

The Oroscos argue, in an attempt to distinguish the facts in this case from Hochhalter, that Hochhalter had only his own affidavit for support, while they have submitted the affidavit of their attorney. The district court when presented with the same argument, identified the issue as being whether the statements of the attorney in his affidavit provided sufficient evidence to justify granting the W.R.C.P. 60(b)(6) motion. The district judge noted that the affidavit recited an undiagnosed physical/psychological condition and did not furnish the names of any treating physicians, psychiatrists, psychologists, or letters or affidavits from them. The district judge pointed out that the affidavit did not state what medication had been prescribed and offered no prognosis. The district judge treated that affidavit as simply a form of bare assertion like that propounded in Hoch-halter. The district court gave careful consideration to the specific problem, and we discern no abuse of discretion in the ruling made that the affidavit by the attorney was no more adequate than the affidavit of the party in Hochhalter.

We hold that the record presented by the Oroscos is not sufficient to demonstrate the absence of culpable conduct on their part. Clearly, the attorney was responsible for the cireumstances that resulted in the Order of Dismissal with Prejudice, but we also have ruled that parties are bound by the conduct of their agents under such cireumstances. The result is that the Oroscos must be held accountable for the attorney's actions or his failure to act. They are unable to satisfy the first element of the test articulated in Va-nasse, and the failure to satisfy any of those elements forecloses reliance upon W.R.C.P. 60(b). The denial of relief under these circumstances cannot be said to constitute an abuse of discretion by the district court.

The Order Denying Plaintiffs' Motion for Relief from Order of Dismissal with Prejudice is affirmed.

      . While its impact may be draconian in some instances, such as this, W.R.C.P. 37(b)(2)(C) specifically provides a sanction of dismissal in this language:
      (2) Sanctions by Court in Which Action Is Pending. - If a party * * * fails to obey an order to provide or permit discovery, * * * the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
      kok a
      (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering judgment by default against the disobedient party[]


author: GOLDEN, Justice.

text:
    EASTERN LARAMIE COUNTY SOLID WASTE DISPOSAL DISTRICT, Appellant (Petitioner), v. STATE BOARD OF EQUALIZATION and Department of Revenue, State of Wyoming, Appellees (Respondents).
    No. 99-228.
    Supreme Court of Wyoming.
    Aug. 1, 2000.

      Representing Appellant: Peter H. Froe-licher, Laramie County Attorney, Cheyenne, Wyoming.
    Representing Appellee: Gay Woodhouse, Wyoming Attorney General; Rowena Hee-kert, Deputy Attorney General; Michael Dinnerstein, Assistant Attorney General. Argument by Mr. Dinnerstein.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   GOLDEN, Justice.

Appellant Eastern Laramie County Solid Waste Disposal District (District) seeks review of an order issued by Appellee State Board of Equalization (Board) upholding a decision of Appellee Department of Revenue (Department), which determined that the District was not exempt from taxes on sales of services and tangible personal property sold to the District because it was not a "political subdivision" as contemplated by the governing statute. We will reverse, holding that the governing statute unambiguously contemplates that the District is a part of "government" and is a "political subdivision" for purposes of that statute.

ISSUES

The District poses these issues:

I. Are the State Board of Equalization's and the State Department of Revenue's decisions, concluding that Appellant is not exempt from sales tax pursuant to W.S. § 89-15-105(a)(iv), arbitrary, capricious, or not in accordance with law?
II. Does the public policy against taxing governmental entities support Petitioner's [District's] position?
III. Does [sic] the State Board of Equalization's and the State Department of Revenue's interpretations of W.S. § 39-15-105(a)(iv) violate the constitutional guarantees of equal protection?

In response, the Board and the Department offer these issues:

1. Does the political subdivision exemption from the sales and use tax exempt subdivisions that are not political such as solid waste disposal districts?
2. Does the Wyoming Constitution prohibit taxing solid waste disposal districts given that the law permits such districts to charge fees [for] their services?
3. Does constitutional law require that solid waste disposal districts be accorded the same treatment under the tax statutes as weed and pest control districts given that solid waste disposal districts address different concerns than weed and pest control districts?

FACTS

On June 10, 1997, the District contacted the Department to confirm the tax exempt status it had enjoyed for at least the preceding seven years. By letter dated October 15, 1997, the Department informed the District that it was not an exempt entity under Wyoming sales/use tax law, applying the following reasoning:

According to Wyoming law, in order to be considered a political subdivision an entity must have the following characteristics:
(1) A geographic area smaller than the state of Wyoming;
(2) A governmental function with a local purpose;
(3) Officers elected by the district's inhabitants; and,
(4) Provisions for assessment of taxes to finance purposes.
Witzenberger [Witzenburger] v. Wyoming Community Development Authority, 575 P.2d 1100, 1118 (Wyo.1978).
According to Wyoming law, the governing board of solid waste disposal district[s] consists of residents of the district appointed by the county commissioners. W.S. 18-11-102. As such, it is the Department's opinion that your organization does not meet criterion number (8) described above. Consequently, Eastern Laramie County Solid Waste Disposal District is not a political subdivision for purposes of sales/use tax.

By notice filed on November 18, 1997, the District appealed the Department's decision to the Board. For purposes of brevity, although the Board's order is lengthy, we will merely note that the Board affirmed the Department's determination that the District was not exempt on the same basis as that quoted above from the Department's letter to the District. The District then filed a petition for review pursuant to W.R.A.P. 12.09 in the district court, and the district court certified the matter here for review.

DISCUSSION

Standard of Review

The right of judicial review of an administrative decision is statutory. Basin Elec. Power Co-op., Inc. v. Dep't of Revenue, 970 P.2d 841, 847 (Wyo.1998). When a case is certified to this Court pursuant to W.R.A.P. 12.09, we examine the decision of the administrative agency as if we were the reviewing court of the first instance. The authority vested in a reviewing court is set forth in Wyo. Stat. Aun. § 16-3-114(c)@) as follows:

(ii) [The reviewing court may] [hjold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Montana Dakota Utilities Co. v. Public Service Comm'n of Wyoming, 847 P.2d 978, 983 (Wyo.1993); Ahlenmius v. Wyoming Bd. of Professional Geologists, 2 P.3d 1058, 1060 (Wyo.2000).

As its first issue, the District contends that Wyo. Stat. Ann. § 39-15-105(a)iv)(A) (LEXIS 1999) creates an exemption for it:

(iv) For the purpose of exempting sales of services and tangible personal property sold to government, charitable and nonprofit organizations, irrigation districts and weed and pest control districts, the following are exempt:
(A) Sales to the state of Wyoming or its political subdivisions;

The issues raised by the District require us to interpret the language of that statute. As we stated in Olheiser v. State ex rel. Wyoming Workers' Compensation Div., 866 P.2d 768, 770 (Wyo.1994):

We have interpreted statutes on innumerable occasions, so our standard is well established. First, we determine if the statute is ambiguous by looking at the plain and ordinary meaning of the words contained therein. Parker Land and Cattle Co. v. Wyo. Game & Fish Comm'n, 845 P.2d 1040, 1042-48 (Wyo.1998).
A "statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistence and predictability. * * * [A] statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. * * * [Whether an ambiguity exists in a statute is a matter of law to be determined by the court." Parker Land and Cattle Co. at 1048 (quoting Allied Signal, Inc. v. Wyo. State Bd. of Equalization, 818 P2d 214, 219-20 (Wyo.1991)).

Island Richards v. Board of County Commissioners, 6 P.8d 1251 at 1252 (Wyo.2000).

The essence of the District's argument is that both the Department and the Board have incorrectly construed the statute by relying solely and very strictly upon the definition of "political subdivision" as set out in Witzenburger v. State ex rel. Wyo. Community Dev. Authority, 575 P.2d 1100 (Wyo.1978). We do not read Witzenburger to require an entity to have all four of the "distinctive badges of a political subdivision," id. at 1113, in order to qualify as a political subdivision. A computer-aided search of the Wyoming Constitution and statutes reveals that the phrase "political subdivision" is used hundreds of times in dozens of contexts. Although it is somewhat contrary to the arguments presented by the parties, our conclusion will be founded in simplicity and directness. In construing a taxing or revenue statute, courts should attempt to ascertain and give effect to the intention of the legislature, and that intention is to be gathered from a consideration of every word in the statute so as to make it harmonious and reasonable in its operation. State v. Union Pacific Railroad Co., 823 P.2d 539, 541 (Wyo.1992). As a general rule, tax exemptions are given a strict interpretation against an assertion of a taxpayer and in favor of the taxing power. 3A Sutherland Stat. Const. § 66.09, at 42 (5th ed.1992). However, the reasons for that rule do not apply in the instance of tax exemptions running to the benefit of the government itself or its agencies. Id. at 48. In such a case, the practical effect of an exemption is merely to reduce the amount of money that has to be handled by government in the course of its operations. Id. For these reasons, provisions granting exemptions to government agencies may be construed liberally in favor of such agencies. Id.

The statute in question announces a comprehensive purpose to exempt "government" from payment of sales taxes, including the state itself and its political subdivisions. There is no more fundamental political subdivision than that of the county. Solid waste disposal districts are created by elected boards of county commissioners, though the boards do assign the day-to-day management tasks to appointed governing boards for those districts. Wyo. Stat. Ann. §§ 18-11-101, 102 (LEXIS 1999). We conclude that the exemption contemplated by § 389-15 105(a)(iv){(A) clearly includes solid waste disposal districts.

The Department contends that such a construction is flawed because § 89-15-105(a)(iv) specifically makes reference to irrigation districts and weed and pest control districts, but does not include solid waste disposal districts. With respect to irrigation districts, which were added to the exemption statute in 1997, it is clear that such districts are not a creature of the county and, hence, likely not a part of "government" or a "political subdivision," even under a liberal construction of the exemption statute. Irrigation districts are statutorily authorized associations of private landowners designed to facilitate improvement of the existing water supply for the lands covered by such a district. Wyo. Stat. Ann. §§ 41-7-201-210 (LEXIS 1999); 1997 Wyo. Sess. Laws Ch. 54, § 1. Weed and pest control districts were added to the statute in 1998. 1998 Wyo. Sess. Laws Ch. 48, $ 1. Weed and pest districts are also creatures of counties and their addition to the exemption statute is a redundancy in that they are also political subdivisions in light of the construction we have adopted. See Wyo. Stat. Ana. § 11-5-104 (LEXIS 1999). Our research does indicate that a 1976 Opinion of the Attorney General determined that sales transactions of weed and pest districts were not exempt on the basis that they were political subdivisions because political subdivisions fell within the meaning of the word person subject to tax under the statutes relevant at that time. Op. Wyo. Att'y. Gen. 76-01 (1976). This is likely the source of that amendment to the exemption statute, but in any event it is our conclusion that weed and pest districts would also qualify for an exemption as a political subdivision of government.

The Department also maintains that a determination that a solid waste disposal district is a political subdivision under the exemption statute is foreclosed because a bill to add solid waste disposal districts to the exemption statute, offered in the 1999 Legislature, failed passage. The amendment introduced in 1999 would have provided enhanced clarity, but its failure of passage does not cause the existing language in the statute to be ambiguous.

Having determined that the District is a political subdivision of government under the exemption statute, we need not address the other issues raised in the briefs. The order of the Board is reversed, and this matter is remanded to the district court with directions that it be returned to the Board with further directions that the order appealed herein be vacated, and an order be entered by the Board determining that the District is tax exempt under § 39-15-105(a)(iv)(A).

      . On October 4, 1999, this Court dismissed this appeal for want of prosecution. Upon a petition for reinstatement filed by Appellant, this Court reinstated the appeal pursuant to a grant of a writ of review on October 26, 1999.

      . At the time of the proceedings before the Board this statute was codified at Wyo. Stat. Ann. § 39-6-405(a)(iv)(A) (Michie 1997). For purposes of our discussion, the 1999 version of the statute is essentially the same and includes a 1998 amendment that figures in the Department's argument.


author: CARPENETI, Justice.

text:
    R.I., Appellant, v. C.C., Appellee.
    No. S-9389.
    Supreme Court of Alaska.
    Aug. 18, 2000.

      R.1., pro se, Anchorage.
    Maryann E. Foley, Alaska Pro Bono Program, Anchorage, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETTI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

The superior court awarded custody of Cindy I. to Constance C., Cindy's mother Richard I. appeals that decision, as well as related orders of the superior court. Because the superior court did not abuse its discretion in the award of child custody, and because Richard I.'s arguments on every other issue either lack merit or pertain to orders that are not properly before us, we affirm the superior court in all respects.

II FACTS AND PROCEEDINGS

A. Facts

Constance C. gave birth to Cindy I. in May 1986. At the time, Constance was married to Allan G., who was listed as the father on Cindy's birth certificate. Constance and Allan later divorced.

In 1991 Richard I. acknowledged his paternity of Cindy in writing. The Child Support Enforcement Division (CSED) commenced a child support case against Richard in 1992.

From her birth until August 1994, Cindy lived with Constance in Alaska. Constance then moved to Texas; Cindy stayed with Richard in Alaska until she went to visit her mother in Texas in October 1994.

Cindy remained with Constance in Texas until early 1995. During that time, Constance had difficulty controlling Cindy's behavior. Constance asked Richard if he would take care of Cindy. Cindy then returned to Alaska to stay with Richard.

In May 1995 Richard received orders to undergo training for the Air National Guard. He made arrangements to have family friends care for Cindy until he returned. Richard returned in November 1995.

While Richard was gone, Cindy was sexually assaulted on several occasions by one of her caretaker's sons. Cindy did not disclose this to any of her adult caretakers and went to live with a family friend. When Richard returned to Alaska, Cindy lived with him. Because of the changes in living arrangements, Cindy was enrolled in five schools during the time that she was in the care of Richard or Richard's friends.

Constance returned to Alaska in February 1996 and located Cindy through Cindy's school. Cindy split her time between her parents' residences until school ended in May. In June Richard received orders to mobilize for the Big Lake fire, and Cindy lived with her mother full-time. Cindy has remained in her mother's care since then.

At least from 1995 to 1997, Cindy suffered from emotional problems. In October 1995 she deliberately stepped in front of a school bus. In December 1996 she was admitted to Charter North Hospital following suicidal statements and gestures at school. Upon admission,. she was hostile and moody; she also expressed feelings of worthlessness, hopelessness, and suicidal ideation. While at the hospital, Cindy disclosed her sexual abuse, after which her behavior improved. She did not report any further suicidal ideation.

Cindy was discharged from the hospital in-January 1997. She then entered therapy to address her extreme anger, manipulative behaviors, depression, and eating disorders.

B. Proceedings

On August 5, 1996, Constance filed a complaint for custody, requesting sole legal and physical custody of Cindy, with Richard receiving reasonable visitation. The complaint also asked, among other things, that Constance be allowed to apply for Cindy's permanent fund dividend. The case was assigned Case No. 3AN-96-6146 (Case 6146). On the same day, Constance filed a motion for interim custody.

Shortly after Constance filed her action, Richard filed a complaint against Constance and CSED. The case was assigned Case No. 3AN-96-6807 (Case 6307). Richard's complaint asked the court to (1) restrain the defendants from attempting to collect money from him; (2) order paternity testing; (8) award him physical custody of Cindy; and (4) order the return of monies that had been collected from him.

In September 1996 Richard filed an answer and counterclaim to Constance's complaint in Case 6146. He asserted counterclaims that were very similar to the claims he asserted in Case 6307. In addition, he requested the court to order Constance to withdraw her application for Cindy's 1996 permanent fund dividend. The record contains no indication that Richard opposed Constance's motion for interim custody.

On November 4, 1996, Richard moved the court to consolidate Case 6146 and Case 6807 because their issues were "similar in nature." Superior Court Judge Elaine M. Andrews granted the motion and assigned the consolidated cases to Superior Court Judge Michael L. Wolverton.

On November 29, 1996, Judge Wolverton awarded interim custody to Constance, with reasonable visitation to Richard. The court also held in abeyance a ruling on child support until the completion of an investigation and hearing in a collateral proceeding involving Richard and CSED and dealing with Richard's child support obligations.

In December 1996 Richard filed a motion to terminate Constance's interim custody award. Constance opposed the motion. On March 5, 1997, Judge Wolverton held a hearing on the motion and denied it. On the same day, Judge Wolverton appointed the Office of Public Advocacy (OPA) to act as the guardian ad litem for Cindy.

In October 1997 Judge Wolverton dismissed Case 6807 as moot because Richard had filed an administrative appeal in his collateral child support case. As Judge Wol-verton stated, the two cases that were consolidated are "therefore no longer consolidated, the State is no longer a party to this action, and the case will proceed under case number SAN 96-6146 regarding any remaining custody issues until further order of this court." Judge Wolverton later denied Richard's request for paternity testing.

Trial was held in March 1998. On June 18, 1998, Judge Wolverton issued Findings of Fact and Conclusions of Law, in which he adopted the recommendations of the guardian ad litem and awarded sole legal and physical custody of Cindy to Constance.

On July 27, 1998, Richard filed a late notice of appeal for both Case 6146 and Case 6307. In October 1999 Richard filed a motion for this court to accept his late appeals. We granted the motion with respect to Case 6146 but denied it with respect to Case 6307, finding unacceptable the nine-month delay in appealing the latter case.

III. STANDARD OF REVIEW

We will reverse a custody determination only if the trial court has abused its discretion or if "its controlling findings of fact are clearly erroneous." "A finding of fact is clearly erroneous only when a review of the record leaves the court with a definite and firm conviction that the superior court has made a mistake." An abuse of discretion will be found "if the superior court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others." We also review interim orders for an abuse of discretion.

The other issues in this appeal involve legal questions, which we review de novo. In doing so, we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy,"

IV, DISCUSSION

Richard's main contention is that the superior court erred in denying him joint custody of Cindy. He also argues that the superior court erred in (1) denying him interim ecusto-dy of Cindy; (2) awarding Cindy's 1996 permanent fund dividend to Constance; (8) not ordering paternity testing; and (4) not modifying his child support order. each of Richard's arguments. We reject

A. -The Superior Court Did Not Abuse Its Discretion in Awarding Constance Sole Legal and Physical Custody of Cindy.

Alaska Statute 25.20.060(a) provides that if there is a dispute over child custody, "Itlhe court shall award custody on the basis of the best interests of the child. In determining the best interests of the child, the court shall consider all relevant factors including those factors enumerated in AS 25.24.150(c)."

In the instant case, the guardian ad Htem provided a detailed analysis of each of the factors listed in AS 25.24.150(c). She concluded that it was in Cindy's best interests to grant Constance sole legal and physical custody of Cindy.

Judge Wolverton adopted the guardian ad litem's recommendation and awarded Constance sole legal and physical custody of Cindy. But in doing so, Judge Wolverton did not merely adopt the guardian's report. He independently made findings regarding the factors listed in AS 25.24.150(c). For example, he found that "[Constance] has gone the extra mile in dealing with school professionals and mental health authorities and others to take care of the problems [Cindy] is experiencing." He also found that "[gliven the course of events, particular[ly] since the discovery of the sexual abuse, ... [Constance] has provided a stable and satisfactory environment for [Cindy]. It is clearly desirable to continue that for [Cindy]." Furthermore, Judge Wolverton found that "[Cindy] has a problem, in her view, with her relationship with her father," that Cindy loves her mother but is conflicted about her relationship with her father, and that Cindy prefers to live with her mother. All of these findings are consistent with the guardian ad litem's report.

On appeal to this court, Richard does not argue that any of the superior court's findings of fact were clearly erroneous. He also does not argue that the superior court considered improper factors, failed to consider statutorily-mandated factors, or assigned any such factors disproportionate weight. Instead, Richard argues that the superior court's order was "prejudicial" to him and that the guardian ad KHtem made no effort to observe him interact with Cindy.

In child custody proceedings, the best interests of the child is the paramount consideration. Richard's argument that the superior court's decision was "prejudicial" to him does not provide sufficient grounds for reversing the superior court's order.

Our review of the record leads us to conclude that none of the superior court's controlling findings of fact is clearly erroneous. The superior court also considered the statutorily-mandated factors and did not assign any such factor disproportionate weight. Finally, there is no indication that the superior court considered improper face-tors in making its custody determination. We accordingly hold that the superior court acted within its discretion in awarding Constance sole legal and physical custody of Cindy.

B. Issues Pertaining to the Interim Custody Order Are Moot.

Richard argues that the superior court erred in denying him interim custody of Cindy. Given that a final award of custody has been made, Richard would be entitled to no relief even if he prevailed on this issue. We therefore hold that issues pertaining to the interim custody order are moot.

C. The Superior Court Did Not Err in Ordering the Department of Revenue to Hold Cindy's 1996 Permanent Fund Dividend.

Richard argues that the superior court erred in awarding Cindy's 1996 permanent fund dividend to Constance, and that the dividend should have been awarded to him. Constance responds that the superior court did not order the Department of Revenue to issue the dividend to her.

The superior court ordered the Department of Revenue "to hold the Permanent Fund Dividend of [Cindy] ... until a further court order is issued as to the disbursement of the minor child's Permanent Fund Dividend." The record does not indicate that the court ever ordered the dividend to be disbursed to Constance. Richard incorrectly asserts that the superior court awarded Cindy's 1996 permanent fund dividend to Constance; the superior court actually ordered the dividend to be held.

It will often be appropriate for a court to order the Department of Revenue to hold a child's permanent fund dividend until custody issues pertaining to that child are resolved. Because Richard presents us with no reason to conclude that the superior court erred in doing so here, we affirm the court's order.

D. The Superior Court Did Not Err in Denying Richard's Request for Paternity Testing.

The superior court denied Richard's request for paternity testing, which he made in both Case 6146 and Case 6807. Richard argues that the superior court erred in failing to order paternity testing, suggesting that it is in Cindy's best interests to know who her biological father is. Constance argues that the paternity testing issue is not properly before this court for review. She also argues that Richard's requests for paternity testing were defective and that he did not provide the superior court with sufficient reasons to order paternity testing. We hold that the superior court did not err in denying Richard's request for paternity testing.

The version of AS 25.20.050(e) that was in effect when Case 6146 was filed required courts to order paternity testing in certain actions "in which paternity is contested." Case 6146 is not such a case. Constance has not alleged that someone other than Richard is Cindy's biological father; Richard stated to the superior court that he has not denied his paternity of Cindy. Because neither party has contested Richard's paternity of Cindy, this is not a case "in which paternity is contested." We accordingly hold that the superior court did not err in denying Richard's request for paternity testing.

E. Issues Pertaining to Richard's Child Support Obligation Are Not Properly Before Us for Review.

Richard argues that the superior court erred in refusing to modify his child support obligation. Constance counters that this issue is not properly before us for review.

Judge Wolverton found that Richard had pursued the child support issue in his collateral child support proceeding. As Judge Wolverton noted, another superior court judge had dismissed Richard's administrative appeal regarding Richard's child support obligations. Judge Wolverton accordingly did not address the issues pertaining to child support modification.

Judge Wolverton did, however, inform Richard that he could appeal the dismissal of his administrative appeal to this court. Richard has done so. In that case, we remanded the dismissal of Richard's administrative appeal with directions to reinstate the appeal.

Judge Wolverton therefore did not rule on issues pertaining to Richard's child support obligations, and they are being addressed in a separate proceeding before a different judge. We hold that these issues are not properly before us for review.

V. CONCLUSION

Because the superior court did not abuse its discretion in awarding sole legal and physical custody of Cindy I. to Constance C., and because Richard L.'s arguments on every other issue either lack merit or pertain to orders that are not properly before us, we AFFIRM the superior court in all respects.

      . In order to ensure anonymity for the persons involved in this case, we use pseudonyms in the text of this opinion.

      . See supra note 1.

      . In this collateral proceeding, the Revenue Hearing Examiner issued a final administrative decision regarding Richard's child support obligation, which Richard appealed to the superior court. The superior court then dismissed the appeal because Richard filed a late brief. See [R.I.] v. State, Dep't of Revenue, Child Support Enforcement Div., Mem. Op. & J. No. 928, at 2 (Alaska, August 4, 1999). We remanded the case to the superior court with directions to reinstate the appeal. See id. at 4.

      . For discussion of the these collateral proceedings, see supra note 3.

      . See Todd v. Todd, 989 P.2d 141, 142-43 (Alaska 1999) (quoting J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998)).

      . Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997) (citation omitted).

      . Id. (citation omitted).

      . Id. (citation omitted).

      . See Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999) (citations omitted).

      . See State, Dep't of Revenue, Child Support Enforcement Div. v. Kovac, 984 P.2d 1109, 1111 (Alaska 1999) (citation omitted).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . AS 25.24.150(c) provides:
      The court shall determine custody in accordance with the best interests of the child under AS 25.20.060-25.20.130. In determining the best interests of the child the court shall consider
      (1) the physical, emotional, mental, religious, and social needs of the child;
      (2) the capability and desire of each parent to meet these needs;
      (3) the child's preference if the child is of sufficient age and capacity to form a preference;
      (4) the love and affection existing between the child and each parent;
      (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
      (6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
      (7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
      (8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
      (9) other factors that the court considers pertinent.

      . When the guardian ad litem made her recommendations, Cindy was almost twelve years old. Judge Wolverton found that Cindy "is of an age that her preference should be taken into consideration by the court."

      . See I.J.D.v. D.R.D., 961 P.2d 425, 431 (Alaska 1998) (quoting Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982)).

      . See Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997) (citation omitted).

      . See id. (citation omitted).

      . See id. (citation omitted).

      . We note that the record does not indicate whether the permanent fund dividend was ever disbursed. Because Constance has been granted sole legal and physical custody of Cindy, she may wish to petition the superior court to order the disbursement of the dividend to her.

      . Because we denied Richard's untimely appeal of Case 6307, we address only the paternity testing issues raised in Case 6146.

      . Former AS 25.20.050(e) (1996). The current version of AS 25.20.050(e) also requires courts to order paternity testing in certain "proceedings in which paternity is contested."

      . Richard's major reason for seeking paternity testing appears to be to confirm that he is Cindy's biological father, not to prove that he is not her biclogical father.

      . See [R.I.] v. State, Dep't of Revenue, Child Support Enforcement Div., Mem. Op. & J. No. 928 (Alaska, August 4, 1999).

      . See id. at 4.