text:
    2002 WY 149
    Karen McGARVEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-133.
    Supreme Court of Wyoming.
    Oct. 4, 2002.

      Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director, Defender Aid Program; and Jason Smiley, Student Intern., Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Michael J. Finn, Senior Assistant Attorney General, Representing Appel-lee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[T1] This is an appeal from an Amended Judgment and Sentence issued by the district court on April 20, 2001. A jury conviet-ed the appellant, Karen McGarvey (McGar-vey), of one count of burglary in violation of Wyo. Stat. Aun. § 6-8-301(a) (LexisNexis 2001) and two counts of forgery in violation of Wyo. Stat. Ann. § 6-3-602(a)(ii) (Lexis-Nexis 2001)-one felony count relating to the passing of checks and one relating to credit card use. The district court imposed concurrent prison sentences of five to ten years for each conviction. McGarvey appeals only the burglary and check forgery convictions. We affirm.

ISSUES

[12] The issues presented by McGarvey are:

1. Whether the evidence presented to the jury was sufficient to sustain a conviction for forgery, when the best evidence offered by the State was the testimony of its expert witness who could only testify that it was probable that Ms. McGarvey wrote the checks?
2. Whether the evidence presented to the jury was sufficient to sustain a conviction for burglary, when the State failed to prove more than that Ms. McGarvey was in possession of recently stolen property?

FACTS

[13] On November 6, 2000, between the hours of 4:00 p.m. and 6:49 p.m., a car burglary occurred at the Sands Cafe Restaurant in Rock Springs. Leah Bucknell (Bucknell), the owner of the vehicle, reported that her black purse had been stolen, and that it contained a Gold MasterCard, a checkbook, her driver's license, and a spare key to the car.

[14] On November 7, 2000, Bucknell and her husband reported to police that their credit card had been used at several area businesses, including the Days Inn. Officers went to the Days Inn and discovered that an individual purporting to be Bucknell had rented room 863 for two days. The officers went to the room and made contact with that person, who turned out to be McGarvey. Officers also discovered McGarvey's vehicle at the Days Inn, and they learned that there was an active warrant for her arrest. During a search incident to McGarvey's arrest on the outstanding warrant, Bucknell's checkbook was found in McGarvey's coat pocket. The police also found Bucknell's Gold MasterCard, driver's license, and the spare car key in McGarvey's possession. An officer observed a black purse on the floor of McGarvey's car, and Bucknell subsequently identified the purse and the other items as hers. Bucknell also noted that four checks were missing from the checkbook. .The desk clerk at the Days Inn identified McGarvey from a photo lineup as the person who signed the name Leah Bucknell to the guest register and to the credit card receipt for rental of the room. Bucknell's first name had been misspelled on the receipt as "Legh" rather than "Leah."

STANDARD OF REVIEW

[T5] The standard of review has been stated as:

When addressing a claim that the evi-denee is not sufficient to sustain the conviction for a crime ... [wle assess whether all of the evidence ... presented was adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a fact-finder when that evidence is viewed in a light most favorable to the State. We will not substitute our judgment for that of the jury when we apply [this] rule, and our only duty is to determine whether a quorum of reasonable and rational jurors would, or even could, have come to the same result as the jury actually did in the case under review.

Mueller v. State, 2001 WY 134, 1 22, 36 P.3d 1151, 1159 (Wyo.2001).

DISCUSSION

CBECcK

[T6] McGarvey contends that this Court: should reverse her conviction for check forgery because the State's best evidence was insufficient to support a guilty verdict. She argues that the State's primary evidence was its handwriting expert, who testified that there were only "indications" that McGarvey had written the checks.

[T7] With regard to forgery, Wyo. Stat. Ann. § 6-3-602(a)(ii) provides, in pertinent part:

A person is guilty of forgery if, with intent to defraud, he:
(ii) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act[.]

[18] The evidence presented at trial revealed a chain of events beginning with McGarvey checking into a room at the Springs Motel in Rock Springs in the late afternoon or early evening of November 6, 2000. By 6:49 p.m., the rear passenger side window of Bucknell's vehicle had been broken out, her purse had been stolen from it, and someone had used her credit card and checkbook. Four checks were written from the checkbook, numbers 245, 246, 247 and 249, and someone used or attempted to use the credit card three times on the evening of November 6th.

[19] An individual identified as McGar-vey arrived at the Days Inn around 10:30 pm., and used Bucknell's credit card to rent room 363. McGarvey signed the register as "Legh Bucknell," a misspelling of Leah Bucknell's name. Bucknell's check number 245 was passed at Smith's grocery at 6:49 pm. and was also signed "Legh Bucknell."

[110] The following morning at approximately 10:30 a.m., McGarvey was found in room 363 at the Days Tun, arriving sometime between 9:00 am. and 10:30 am. When McGarvey arrived at room 868, she had Bucknell's driver's license, credit card, checkbook, and spare car key that had been in Bucknell's purse. The stolen purse was in the vehicle registered to McGarvey, which was parked in front of room 368. McGarvey also had in her possession a Smith's grocery store cash register receipt that contained information concerning goods purchased with check number 245 from Bucknell's checkbook.

[T11l Based on the foregoing, the jury concluded that McGarvey unlawfully had passed a check from Bucknell's checkbook. McGarvey possessed the stolen checkbook that contained the forged checks, and she also had the cash register receipt corresponding to the items purchased at Smith's grocery store the previous evening. In addition, it is undisputed that McGarvey used Bucknell's credit card to rent the room at the Days Inn, and used the same misspelling of Bucknell's first name as that found on check number 245. This evidence indicated that McGarvey not only had the opportunity to pass herself off as Bucknell, but also showed her disposition to do so. The evidence of opportunity to commit the act is a link which, considered in connection with other incriminating facts, can prove that McGarvey committed the alleged crime. See Jones v. State, 568 P.2d 837, 845 (Wyo.1977).

[T12] While the State's handwriting expert could not conclusively determine that McGarvey had signed the forged checks, he could not exclude her either. The signature on all the forged checks showed "indications" that McGarvey had signed them. This, in itself, would not suffice to convict McGarvey, but is probative and corroborative evidence that McGarvey executed the checks. We conclude that the evidence, when viewed in a light most favorable to the State, was sufficient for reasonable individuals to conclude that McGarvey was the person who fraudulently wrote or used the preprinted checks belonging to Bucknell.

Burcuary

[1183] McGarvey next contends that her burglary conviction should be reversed because the State failed to present sufficient corroborative evidence beyond MeceGarvey's possession of recently stolen property. McGarvey was convicted of burglary under Wyo. Stat. Ann. § 6-3-801(a), which provides: "A person is guilty of burglary if, without authority, he enters or remains in a ... vehicle ... with intent to commit larceny or a felony therein."

[114] When sufficiency of the evidence is challenged in burglary convictions, this Court examines the record, in a light most favorable to the State, to see if there is slight corroborative evidence, other than possession of stolen goods, which connects the appellant with the burglary. King v. State, 718 P.2d 452, 453 (Wyo.1986). We have stated that the possession of stolen goods alone is not sufficient evidence to convict for burglary. Id. (quoting Newell v. State, 548 P.2d 8, 13 (Wyo.1976)). However, we have also concluded with regard to burglary that, " 'Itlhe most significant and material evidence of defendant's guilt is his possession of the stolen property. Possession is a strong circumstance tending to show guilt and only slight corroborative evidence of other incul-patory circumstances is required " to con-viet. Sutherland v. State, 944 P.2d 1157, 1161 (Wyo.1997) (quoting Newell, 548 P.2d at ¶ 13).

[T 15] McGarvey was found to be in possession of the stolen items approximately sixteen hours after the burglary occurred, and she had used the stolen checkbook. We stated in Downs v. State, 581 P.2d 610, 616 (Wyo.1978), that "[the defendant's dealing with the property as his own, by sale, is a corroborating cireumstance" of burglary. While McGarvey did not sell the goods, her situation is similar to that of Downs' because she clearly dealt with the property as her own when she bought goods with the stolen checks.

[116] The trial evidence also showed that McGarvey was in proximity to the burglarized vehicle at about the same time the burglary occurred. The burglary occurred on November 6, 2000, between 4:00 pm. and 6:49 pm. McGarvey checked into a motel room one block away from where the burglary occurred in the late afternoon or early evening on November 6th. This put her in close proximity to the burglary both in time and space. A defendant's presence in the neighborhood of a burglary is an important cireumstance that is not to be treated merely as coincidence. Placing a defendant in the area of the scene of the crime, along with possession, is sufficient to sustain a conviction. Downs, 581 P.2d at 616. Because McGarvey was in proximity of the burglary, she had the opportunity to commit the crime. "Evidence of opportunity to commit the crime is a link which considered with other incriminating facts may establish the guilt of the defendant." Id.

[117] Further corroborating evidence was presented at trial that showed McGarvey not only had the opportunity, but also the means to commit the burglary. McGarvey's vehicle contained tools, including two hammers capable of breaking the rear window of Bucknell's vehicle. This evidence supported a reasonable inference that McGarvey committed the burglary. In addition, we have previously stated that if stolen property is soon thereafter found in possession of one charged with a burglary, proof of an unlawful entry, in conjunction with cireumstances showing guilty conduct of the defendant, is evidence not only of the larceny, but also that the person made use of the unlawful entry to obtain the property. Downs, 581 P.2d at 617. This is a classic example of an inference of guilt arising from circumstantial evidence. Bucknell reported that her purse had been stolen from her car. A rear window in the car had been smashed. The smashed window, coupled with McGarvey's possession of the stolen purse, was evidence not only that McGarvey stole the purse, but that she did so by breaking into the car.

CONCLUSION

[118] The State offered sufficient direct and cireumstantial evidence at trial to support McGarvey's conviction for check forgery. She was in sole possession of the stolen checkbook, she was found with the Smith's grocery store cash register receipt where one of the forged checks was passed, and she incorrectly spelled Bucknell's first name when she rented the room at the Days Inn, which was the same misspelling on the check passed at Smith's. The burglary conviction was also supported by sufficient evidence. McGarvey possessed and used the stolen items in the hours after the burglary occurred, and there was evidence that she had the opportunity and means to commit the burglary. The Amended Judgment and Sentence of the district court is affirmed.

      . The handwriting expert testified to six levels of confidence that can be given when asserting an . opinion as to whether a person wrote or signed a particular document. The third level is "indications," meaning that the writings or signatures are similar in structure. The fourth level is "probable," meaning that it is more than likely that a particular person wrote or signed a particular document; the fifth level is "highly probable," meaning that a particular person is the author of a particular document or signature, but there exists a remote possibility that someone else could have written or signed the document; and the sixth level is "conclusive," meaning no other person could have written or signed a particular document.


source: Caselaw Access Project

author: VOIGT, Justice.

license: Public Domain

text:
    2002 WY 150
    Robert DONAGHY and Elise Donaghy, husband and wife, Appellants (Petitioners), v. The BOARD OF ADJUSTMENT OF the CITY OF GREEN RIVER, acting by and through its agents and members, Appellee (Respondent).
    No. 01-206.
    Supreme Court of Wyoming.
    Oct. 7, 2002.

      Robert and Elisé Donaghy, Pro Se.
    Karen L. Marty of Marty & Ragsdale, Green River, Wyoming, Representing Appel-lee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   VOIGT, Justice.

[T1] This appeal arises from a dispute between Robert and Elise Donaghy (the Do-naghys) and Jim and Helen Metziner (the Metziners) regarding the Metziners' attachment of fiberglass panels to the 2x4 rafters of their wooden patio structure, that structure having existed prior to the passage, in 1987, of Green River's zoning ordinance. The City of Green River ultimately issued a building permit authorizing the fiberglass panels' attachment. The Donaghys challenged the building permit's issuance before the Board of Adjustment of the City of Green River (the Board), arguing that the permit was issued improperly and that the attachment of fiberglass panels to the wooden patio structure violated Green River's zoning ordinance. The Board concluded that the building permit was properly issued and that the attachment of fiberglass panels did not change the basic wooden patio structure or alter it to a degree that it would violate the zoning ordinance. The Donaghys appealed this decision to the district court, The district court affirmed the Board's decision, and this appeal followed. We affirm.

ISSUES

[T2] The Donaghys, as appellants, state the issues on appeal as follows:

A: Issuance of a building permit after the construction was complete. The grandfathered structure was significantly altered by the overiay of a solid, highly reflective and precipitation discharging fiberglass roof (an increase in non- and an increase in total amount of space in area).
B: The overlay of fiberglass panels resulted in a change of use which is prohibited by ordinance, and cannot be considered simply a repair.
C: The setback requirement is violated since the fiberglass is placed into the setback, and angled such that nearly all precipitation that accumulates on the fiberglass roof is propelled onto the Appellant's property. ~
D: The Green River Board of Adjustment did not consider Appellant's contention that the fiberglass cannot be assimilated into the environment.

(Emphasis in original.) The Board, as appel-lee, essentially responds to the issues raised by the Donaghys within the context of the applicable standard of review.

FACTS

[T3] The Donaghys and the Metziners are neighbors on Sunset Street in Green River. In the 1960s, a predecessor to the Metziners constructed a wooden patio structure on what is now the Metziners' property, and a cement block privacy fence along the lot boundary between the properties now owned by the Metziners and the Donaghys. Based on the documentation and photographs contained in the record, the patio structure apparently consists of a wooden structure that supports a series of "closely spaced" wooden 2x4 "rafters," to use the Donaghys' terminology, which are angled vertically toward the cement block privacy fence and the Donaghys' property. A forty-one year resident of the neighborhood recalled that in the past (without further qualification as to the relevant time period), a light canopy had periodically been used to cover the wooden patio structure (he imagined that the canopy was tacked to the structure, presumably to the series of 2x4 rafters), and had been informed that a roll-up awning had similarly been utilized. In August 1999, the Metziners attached fiberglass panels to the wooden patio structure's 2x4 rafters.

[14] In December 1999, the Donaghys filed a Citizen Action Request with the City of Green River, complaining that the Metzin-ers violated the city's zoning ordinance by attaching the fiberglass panels to the wooden patio structure's 2x4 rafters and that the Metziners also subjected the Donaghys to "lawn sprinkler damages" and "floodlight harassment." Pursuant to this request, the city building inspector investigated the alleged zoning ordinance infractions and indicated by letter that the attachment of fiberglass panels did "not increase the area of the shed," nor did it "increase the amount of nonconformity with respect to setbacks or height limitations." Subsequently, apparently at the city's suggestion, Helen Metziner submitted a building permit application dated January 31, 2000, stating that the fiberglass panels had been installed "on an existing patio cover to replace canvas awning that had dis[iIntegrated" and that "I did not know I needed a permit." The City of Green River issued a building permit to the Metziners on February 2, 2000 authorizing them to "put fiberglass roofing on existing shed."

[T5] The Donaghys challenged the issuance of the building permit before the Board. Following a hearing on April 6, 2000, during which documents, arguments, and sworn comments were received on behalf of both parties, the Board found that the building permit was properly issued and that the Zoning Ordinance of Green River, Wyoming, Appendix B, § 9.5(B) and (C)(2) (1987) (Zoning Ordinance) permitted the attachment of the fiberglass panels to the wooden patio structure's existing 2x4 rafters because it did not change the basic wooden patio structure or alter it to a degree that it would violate the zoning ordinance. The Donaghys appealed this ruling to the district court, which affirmed the Board, and this appeal followed.

STANDARD OF REVIEW

[16] We accord no special deference to the district court's decision and will consider the case as if it came directly from the agency. In re Jensen, 2001 WY 51, ¶ 9, 24 P.3d 1133, 1136 (Wyo.2001). Our review is limited to a determination of the factors specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001). The reviewing court shall:

Hold 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;
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-38-114(0)@)(A) and (E).

We recently held that the substantial evidence test is the appropriate standard of review in appeals from Wyoming Administrative Procedures Act contested case proceedings when factual findings are involved and both parties submit evidence. Newman v. Wyoming Workers' Safety and Compensation Division, 2002 WY 91, ¶ 22 [49 P.3d 163] (Wyo.2002). We further held, that when only the party with the burden of proof submits evidence in the contested case proceeding and that party does not ultimately prevail, the arbitrary or capricious standard governs the judicial review of that agency decision. Id. Even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision may be found to be arbitrary or capricious for other reasons.
Id. at 128. We do not examine the record only to determine if there is substantial evidence to support the board's decision, but we must also examine the conflicting evidence to determine if the hearing examiner could have reasonably made its finding and order upon all of the evidence before it. Id. at 124, 125. [When both parties present] cases-in-chief, we apply the substantial evidence standard. We afford respect and deference to a hearing examiner's [in this case, the Board's] findings of fact if they are supported by substantial evidence. Haagensen v. State ex rel. Workers' Compensation Div., 949 P.2d 865, 867 (Wyo.1997). Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. [State ex rel. Wyoming Workers' Compensation Div. v.] Waggener, 946 P.2d [808] at 814 [(Wyo.1997)]. We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Id. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Id. A hearing examiner's conclusions of law are afforded no special deference and will be affirmed only if truly in accord with law. State ex rel. Wyoming Workers' Compensation Div. v. Barker, 978 P.2d 1156, 1159 (Wyo.1999).

Kuntz-Dexter v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 101, ¶ 10, 49 P.3d 190, 192-93 (Wyo.2002).

DISCUSSION

[T7] In order to establish a context for resolving the issues raised by the Donaghys, we note that it is undisputed that the Metzin-ers' wooden patio structure existed prior to the passage, in 1987, of Green River's zoning ordinance. The Donaghys and the Board have analyzed the issues in this matter beginning with the premise that the Metziners' wooden patio structure is "nonconforming" in "use" and/or "structure." We will follow their lead for purposes of this case. Zoning Ordinance § 9.5 addresses non-conforming uses:

Section 9.5. Non-conforming Uses.
Any use or structure in existence in the city on the effective date of this ordinance that complied with all previously applicable legal and safety requirements is deemed to be legally non-conforming. A non-conforming use occurs when any property is used for a purpose or in a manner that does not conform to the use regulations, as described in the table of uses, Section 9.2, for the zoning district in which it is located. A non-conforming structure is a structure that does not conform to the height and bulk requirements for the zoning district in which it is located. Such legally existing non-conforming uses and structures are not subject to the provisions of this chapter, yet any changes to such use or structure shall meet the following requirements:
(A) No Area Enlargement A non-conforming use may be continued on the same land area and within the same floor area as that which existed on the date when the use first became nonconforming. The area occupied by a non-conforming use within an existing structure or tract of land may not be enlarged or extended.
(B) Structural Alteration: Exeept as provided herein, no person or persons may engage in any activity that causes an increase in the extent of non-conformity of a non-conforming structure. In particular, physical alteration of a non-conforming structure is unlawful if such activity results in:
(1) An increase in the total amount of space devoted to a conforming use; or
(2) Greater non-conformity with respect to dimensional restrictions such as setback requirements or height limitations.
(C) Termination:
(1) If active and continuous operation of a non-conforming use is discontinued for a period of eighteen (18) consecutive months, the structure or tract of land shall subsequently be used only for a conforming use.
(2) The right to operate and maintain a non-conforming primary structure shall not terminate if the structure is damaged or destroyed in any manner. Repair or replacement of such damaged or destroyed structures shall be permitted, providing that the repair or replacement will comply with Section 9.5(B) of this ordinance. Any non-conforming structure may be repaired or upgraded, so long as the extent of non-conformity is not increased.

(Emphasis in original.) In addition, the Zoning Ordinance defines "use" as the "purpose for which land or a building is designed, arranged or intended, or for which land or a building is or may be occupied" and "nonconforming use" as one "which lawfully occupied a building or which was a lawfully permitted use on a zone lot at the time this ordinance, or amendments thereto, became effective that does not conform to the use regulations of the district in which it is located." Zoning Ordinance § 1.7(B)(89), (122). A "structure" is anything "constructed or erected with a fixed location on the ground" and a "non-conforming structure" is one "existing on the effective date of this ordinance, or amendments thereto, that does not conform to the provisions of this ordinance nor to the use regulations of the district in which it is located." Id. at § 1.7(B)(88), (120).

[18] The Donaghys first argue that it is apparent from the wooden patio strue-ture's construction that the structure was not intended to support a roof, but was designed to be an "open air patio covering." They cite to a photograph of the patio structure, noting that the structure's 2x4 rafters are "closely spaced," and from this photograph, conclude that the wooden patio structure was designed to be an "unobtrusive, weather resistant, open air patio covering, permitting the free escape of cooking smoke, and the free entrance of diffuse sunlight." The addition of fiberglass panels to the patio structure, according to the Donaghys, therefore increased the non-conforming "use" of the structure in violation of Zoning Ordinance § 9.5(B). They argue that the fiberglass panels functionally changed the use of the structure because the structure now discharges precipitation onto the Donaghys' property and re-fleets light from the Metziners' security floodlights, which light interferes with Mrs. Donaghy's amateur astronomy. The wooden patio structure's "new" use, then, is "to reflect light and discharge precipitation" and the Metziners "knowingly overlayed a solid reflective (of light) and discharging (of precipitation) fiberglass roof upon an open air grandfathered structure converting it into a private nuisance...."

[19] Despite this functional analysis, the Board received other evidence which it could reasonably accept in concluding that the attachment of fiberglass panels to the wooden patio structure's existing 2x4 rafters did not change the purpose for which the structure was designed, arranged, intended, or might be occupied, or otherwise increased the extent of any non-conformity in relation to the structure's past use. It is undisputed that the Metziners did not alter the wooden structure underlying the fiberglass panels, and upon examination, the building inspector concluded that the attachment of fiberglass panels did not increase the structure's area. Further, the wooden structure included a series of 2x4 rafters, and the Metziners attached the fiberglass panels to these rafters to replace a canvas awning that had disintegrated. A light canopy (likely "tacked" to the structure's rafters), as well as a roll-up awning, had similarly been used in the past to periodically cover the structure. Indeed, pursuant to the terms of this particular zoning ordinance, the Metziners could conceivably have reattached a canvas, or similar, covering indefinitely for the same use, which the Donaghys do not dispute. See, eg., Horwitz v. Dearborn Tp., 332 Mich. 623, 52 N.W.2d 235, 236-37 (1952).

[T10] Based on this evidence, the Board could properly conclude that the Metziners' attachment of fiberglass panels to the structure's existing 2x4 rafters merely constituted an "upgrade" in material consistent with the wooden patio structure's past use, as opposed to a change or expansion in its use. Zoning Ordinance § 9.5(B) and (C)(2), which the Board cited in conjunction with its findings, would seem to permit such a circumstance. Accordingly, given the applicable standard of review, we must defer to the Board's findings in this respect.

[¥11] Based on their assertion that the wooden patio structure's "new" use is to "reflect light and discharge precipitation," the Donaghys further argue that Zoning Ordinance § 9.5(C)(I) was violated because a covering over the structure's 2x4 rafters was absent for more than eighteen consecutive months. Zoning Ordinance § 9.5(0)(1) states:

If active and continuous operation of a non-conforming use is discontinued for a period of eighteen (18) consecutive months, the structure or tract of land shall subsequently be used only for a conforming use.

This argument was not presented to either the Board or the district court nor does the argument appear to be jurisdictional or fundamental in nature. We "strongly adhere to the rule forbidding us to 'consider for the first time on appeal issues that were neither raised in, nor argued to, the trial court,! exeept for those issues which are jurisdictional or are fundamental in nature." Bredthauer v. TSP, 864 P.2d 442, 446 (Wyo.1993) (quoting Oatts v. Jorgenson, 821 P.2d 108, 111 (Wyo.1991)).

[112] The Donaghys next assert that the attachment of fiberglass panels to the wooden patio structure violates the setback requirements found in Zoning Ordinance §§ 2.3(8), (10) and 9.5(B) because the panels increase the structure's non-conformity in that regard. Zoning Ordinance § 2.3 establishes minimum setback requirements for principal buildings and uses, as well as accessory uses, while section 9.5(B) states:

Structural Alteration: Except as provided herein, no person or persons may engage in any activity that causes an increase in the extent of non-conformity of a nonconforming structure. In particular, physical alteration of a non-conforming structure is unlawful if such activity results in:
(2) Greater non-conformity with respect to dimensional restrictions such as setback requirements or height limitations.

In advancing this argument, the Donaghys have not directed us to any evidence contained in the record indicating that the attachment of fiberglass panels resulted in a greater non-conformity as to the ordinance's setback requirements. The Board had before it the building inspector's finding that "the addition of a fiberglass roof would not increase the amount of non-conformity with respect to setbacks or height limitations." It is undisputed that the underlying wooden patio structure existed prior to the ordinance's passage and that the Metziners did not alter the underlying wooden patio strue-ture in attaching the fiberglass panels. It is not apparent from the photographs contained in the record that the fiberglass panels meaningfully exceed the dimensions of the underlying wooden patio structure, and the Donaghys do not make such an allegation. It follows that if the underlying structure violated the ordinanee's setback requirements, that structure's non-conformity was "grandfathered" because it existed prior to the ordinance's passage, and that, absent some alteration to the underlying structure, attaching fiberglass panels to the structure's 2x4 rafters did not increase any existing setback non-conformity.

[113] The Donaghys also contend that attaching the fiberglass panels, a solid surface, to the wooden patio structure essentially doubled the land area covered by the structure, and significantly increased the structure's total surface area, because prior to the addition of a solid surface, only empty space existed between the structure's 2x4 rafters. Zoning Ordinance § 9.5(A), the only ordinance section cited by the Donaghys in advancing this argument, provides as follows:

No Area Enlargement: A non-conforming use may be continued on the same land area and within the same floor area as that which existed on the date when the use first became non-conforming. The area occupied by a non-conforming use within an existing structure or tract of land may not be enlarged or extended.

This argument is misplaced. It is undisputed that the Metziners did not alter the underlying wooden patio structure, and the Board had before it the building inspector's finding that the attachment of fiberglass panels did "not increase the area of the" structure, as well as evidence regarding the past use of materials to cover the structure. Accordingly, substantial evidence supports the conclusion that the land and floor area, as well as the area occupied by the "use" of the structure, remained unchanged.

[114] The Donaghys next argue, citing Zoning Ordinance § "2.1# 4 and #5" and referring to these numbered sections as "Residential District Regulations," that the Board erred by failing to consider factors such as certain "negative impacts" to the Donaghys' property, drainage requirements, "general appropriateness" in location and site design, and whether fiberglass could be "assimilated into the environment." Zoning Ordinance § 2.1 is found in "Chapter 2. Residential District Regulations." That particular section does not contain subsections enumerated as "4" or "5." However, Zoning Ordinance § 2.1(B)(2)(d) does contain subsections enumerated as "4" and "5," as well as language consistent with that utilized by the Donaghys in advancing this argument. Specifically, Zoning Ordinance § 2.1(B)@Z)(d) provides as follows:

(B) Criteria for Zone Establishment:

gode ok
(2) Mobile Home Zone Establishment Criteria:
# oto
(d) In addition, a mobile home subdivision shall:
goh ok
4. Minimize any negative impacts on surrounding neighbors or neighborhoods.
5. Meet all applicable residential eri-teria concerning utilities, drainage, street and parking design and construction, landscaping and general appropriateness and quality in terms of location and site design.

(Emphasis in original.) The Donaghys have not directed us to any evidence contained in the record indicating that the Metziners' wooden patio structure is located in a "mobile home subdivision." Therefore, this particular zoning ordinance section appears to be inapplicable to the cireumstances of the instant case.

[115] Finally, the Donaghys assert that the Board erred in concluding that the building permit was properly issued because the permit was issued over five months after the Metziners attached the fiberglass panels to their wooden patio structure. However, based on the Board's findings, and the particular cireumstances of this case, it does not appear that the Metziners were necessarily required to obtain such a permit. Zoning Ordinance $ 1.6(C)(7) provides as follows:

Permits shall not be required for structures existing nor for the use of any structure or land area established prior to the effective date of the zoning ordinance. Any modifications to existing structures or changes of use of any structure [or] land area performed after the effective date of the zoning ordinance shall require permits as provided by this ordinance.

The Board found, specifically citing Zoning Ordinance $ 9.5(B) and (C)(2), that attaching fiberglass panels to the wooden patio structure's existing 2x4 rafters did not change the basic wooden patio structure or alter it to a degree that it would violate the zoning ordinance. In other words, the Board concluded that the attachment of fiberglass panels in this manner did not alter or modify the wooden patio structure, change the structure's use, or increase any non-conformity concerning the structure or its use. We previously detailed the substantial evidence supporting these findings. Absent some structural modification or change of use, it does not appear that a building permit was required. This approach coincides with the seemingly broader pronouncement contained in Zoning Ordinance § 1.4(A) as to the ordinance's intended application:

The enactment of this ordinance shall not prohibit the continuance of the use of any land, building or structure for the purpose for which such land, building or structure is used at the time the ordinance takes effect, and it shall not be necessary to secure any permit or certificate permitting such continuance; provided, however, that any significant alteration of or addition to any existing building or structure or the change in use of any land, building or structure within any area subject to the provisions of these regulations shall be regulated or prohibited.

(Emphasis added.)

[116] For the foregoing reasons, we affirm.

      . See Snake River Brewing Co., Inc. v. Town of Jackson, 2002 WY 11, ¶ 26 n. 7, 39 P.3d 397, 407 n. 7 (Wyo.2002).

      . The Donaghys' attorney also acknowledged at the hearing that the Metziners did not alter the wooden patio structure's square footage in attaching the fiberglass panels.

      . It is certainly advisable to consult the proper authority prior to engaging in any activity that might fall within the purview of a zoning ordinance.


author: KAUTZ, District Judge.

text:
    2002 WY 151
    BOARD OF COUNTY COMMISSIONERS FOR SUBLETTE COUNTY, Wyoming, Petitioner, v. EXXON MOBIL CORPORATION, Respondent.
    No. 01-122.
    Supreme Court of Wyoming.
    Oct. 9, 2002.
    Rehearing Denied Nov. 5, 2002.

      John C. McKinley and Nancy D. Freuden-thal of Lavis & Cannon, Cheyenne, WY, Representing Petitioner. Argument by Mr. McKinley.
    Lawrence J. Wolfe and Patrick R. Day of Holland & Hart, Cheyenne, WY; and Brent R. Kunz of Hathaway, Speight & Kunz, Cheyenne, WY, Representing Respondent. Argument by Mr. Day.
    Vieci M. Colgan, Chief Deputy Attorney (General, Representing Amicus Curige Wyoming Department of Revenue in support of Respondent.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and KAUTZ, D.J.

       Chief Justice at time of oral argument.

   KAUTZ, District Judge.

[11] The Wyoming Department of Revenue (DOR) determined and certified valuations of Exxon Mobil's gas production for the tax year 1998. That certification was dated June 24, 1998. Apparently unhappy with the amount of tax Sublette County would receive, the Sublette County Commissioners filed an administrative contested case with the Wyoming State Board of Equalization (SBOE) on July 14, 1998. In that case the County claimed that 1998 tax assessments against Exxon Mobil were incorrect because Exxon Mobil improperly reported gas production in the county, because improper deductions were allowed in valuing the production, and because flared or vented gas was not included in Exxon Mobil's production.

[12] During the course of the case, Sub-lette County sought to compel discovery from Exxon Mobil about its gas production. The County sought records regarding production for years prior to 1997 as well as the year in question. Exxon Mobil objected and resisted that discovery, claiming it was beyond the scope of the contested case. The SBOE issued an order compelling discovery, and Exxon Mobil filed a petition for writ of review of the discovery order with the district court. The district court determined that Sublette County's administrative case was improper because it failed to identify specific errors on the part of the DOR. The district court held that the administrative case improperly challenged the conduct of Exxon Mobil and attempted to invade the statutory duties of the DOR. Further, the district court required substantial modification of the County's claims before discovery could proceed.

[13] Sublette County then petitioned this court for a Writ of Review of the district court's decision. We granted that Petition to address, in part, the "County's role in a contested case before the Board of Equalization pursuant to Wyo. Stat. Ann. § 39-11-102.1(c) (LexisNexis 2001)."

[T4] We affirm the district court to the extent of its order and remand the case to the district court to require dismissal.

ISSUES

[15] Petitioner Board of County Commissioners for Sublette County lists the following issues:

I. Whether the district court Order on Writ of Review violates the Wyoming Administrative Procedure Act ("WAPA"), Wyoming Tax Statutes, Wyoming case law, and Sublette County's due process rights?
II. Whether the State Board of Equalization's discovery order in this contested case was consistent with law and within the Board's authority?
Whether the district court had subject matter jurisdiction of the State Board of Equalization's discovery order? IIL

Respondent, Exxon states the issues as: Mobil Corporation,

1. Does Sublette County have statutory authority to appeal decisions of the Wyoming Department of Revenue to the State Board of Equalization?
2. If the County has such authority, what final decisions may the County appeal?
3. Did the district court correctly determine that the State Board failed to limit the seope of the County's appeal to errors by the Department of Revenue, as required by law?
4. Did the district court properly accept Exxon Mobil's Petition for Writ of Review?

[16] We granted the Petition for Writ of Review in this case finding that it presented an issue of importance relating to a county's role in a contested case before the Board of Equalization pursuant to Wyo. Stat. Ann. § 39-11-102.l1(c) (LexisNexis 2001). The central issue here is whether Sublette County has statutory authority to bring the contested case before the SBOE. A secondary issue is whether the district court properly defined the scope of such a contested case. A final issue is whether the district court properly accepted Exxon Mobil's petition for writ of review.

STANDARD OF REVIEW

[17] Sublette County's right (or lack thereof) to an appeal is statutory and jurisdictional. Basin Elec. Power Coop., Inc. v. Dep't of Rev., 970 P.2d 841, 847 (Wyo.1998) (citing Pritchard v. State Div. of Voc. Rehab., Dep't of Health & Social Servs., 540 P.2d 5283, 524 (Wyo.1975)). Statutory interpretation is a question of law, for which the standard of review is de novo. Sellers v. Dooley Oil Transp., 2001 WY 44, 110, 22 P.3d 307, 110 (Wyo.2001) (quoting Cargill v. State, Dep't of Health, Div. of Health Care Financing, 967 P.2d 999, 1001 (Wyo.1998)).

[T8] This court is directed to "decide all relevant questions of law." Wyo.Stat. Ann. § 16-3-114(c) (LexisNexis 2001). We are not bound by the decision of the district court, but conduct an independent inquiry into the matter just as if it had proceeded directly to us from the agency. Hat Six Homes, Inc. v. State, Dep't of Employment, 6 P.3d 1287, 1291 (Wyo.2000).

MINERAL TAXATION IN WYOMING

[T9] The Wyoming Constitution mandates that mineral taxes be assessed differently than normal property taxes. Wyo. Const. art. 15, § 3, entitled Taxation of mines and mining claims, reads:

All mines and mining claims ... shall be taxed in addition to the surface improvements, and in liew of takes on the lands, on the gross product thereof, as may be prescribed by law; provided, that the product of all mines shall be taxed in proportion to the value thereof.

(Emphasis added.) This has been called "Itlhe most noteworthy feature of the Wyoming property tax ...." E. George Rudolph, Wyoming Local Government Law 230 (1985). Commenting on Wyo. Const. art. 15, § 8, two other authors indicate:

This section provides for a gross products tax on all valuable minerals in proportion to their value. This tax [is] in addition to taxes paid on surface improvements, but it is in lieu of taxes on the land. The legislature is responsible for determining the appropriate tax rate.

Robert B. Keiter and Tim Newcomb, The Wyoming State Constitution 218 (1998).

[T 10] It is interesting to note that Dean Rudolph wrote, "In spite of its importance, the gross products tax has not, over the years, presented many legal issues of a fundamental nature. Most of the issues that do arise are beyond the scope of this work because assessments are handled entirely at the state level." E. George Rudolph, Wyoming Local Government Law 230 (emphasis added and footnote omitted). At the risk of pointing out the obvious, Rudolph's book is about Wyoming local government, with many chapters about counties, and yet he felt the gross products tax to be beyond the scope of his work.

[T11] The process of "valuing" mineral production for tax purposes is lengthy, involving these steps:

1. The taxpayer files monthly severance tax returns. Wyo. Stat. Ann. § 89-14-207(a)(v) (LexisNexis 2001).
2. The taxpayer files an ad valorem tax return by February 25 in the year following production, and certifies its accuracy under oath. Wyo. Stat. Aun. § 39-14-207(a)(i) (LexisNexis 2001).
3. The Department of Revenue values the production at its fair market value based on the taxpayer's ad valorem return. Wyo. Stat. Aun. § 89-14-202(a)(i1) (LexisNexis 2001).
4. The Department of Revenue then certifies the valuation to the county assessor of the county the minerals were produced in to be entered on the assessment rolls of the county. Wyo. Stat. Ann. § 89-14-202(a)iff) (Lexis-Nexis 2001).
5. The taxpayer then has one year to file an amended ad valorem return requesting a refund. Wyo. Stat. Ann. § 39-14-209(c)(i) (LexisNexis 2001).
6. The Department of Audit has five years from the date the return is filed to begin an audit, and must complete the audit within two years. Wyo. Stat. Ann. § 89-14-208(b)(@i), (v)(D), (vil) (LexisNexis 2001).
7. Any assessment resulting from an audit must be issued within one year after the audit is complete. Wyo. Stat. Ann. § 39-14-208(b)(v)(E) (LexisNexis 2001).

[112] During the valuation process the taxpayer and the DOR are statutorily provided with rights to appeal. Wyo. Stat. Anu. § 39-14-203(b)(viii) and (ix) (LexisNexis 2001) provide for the taxpayer and the DOR to be involved in deciding the valuation method used. These statutes specify that the taxpayer or the DOR may appeal the valuation method to the SBOE. Wyo. Stat. Ann. § 39-18-102(n) (LexisNexis 2001) specifies that the taxpayer may object to the certified valuation. Wyo. Stat. Ann. § 39-14-208(b)(v)(F) specifies that a taxpayer may file a response or appeal to an audit. If a dispute arises during the valuation process, the DOR and the taxpayer may reach a compromise and settlement about the amount of tax due. Wyo. Stat. Ann. § 39-11-108(a)@). None of these specific statutes about appeals or settlement give any appeal rights to counties. Counties are not involved in the valuation process.

DISCUSSION

I. Judicial Estoppel.

[113] The parties' dispute predates this case. In Exxon Corp. v. Bd. of County Comm'rs, Sublette County, 987 P.2d 158 (Wyo.1999), Exxon argued that the County should have appealed to the SBOE (as it did hers) rather than petitioning under Wyo. Stat. Ann. § 39-1-304(a)(xiv) (Michie 1997) (Repealed, now Wyo. Stat. Ann. § 89-11-102.1(c)(x) (Lexis 2001)). The County now asserts that Exxon is estopped from arguing that a county cannot appeal, because it took an opposite position in the prior case.

[114] This argument is fatally flawed because "in no event will judicial es-toppel apply to legal conclusions based on undisputed facts." Ottema v. State ex rel. Worker's Compensation Div., 968 P.2d 41, 46 (Wyo.1998)(citing Bredthauer v. TSP, 864 P.2d 442, 445 (Wyo.1998)). It is undisputed that Sublette County filed an appeal with the SBOE, and whether the county had the power to do this is a question of law. Judicial estoppel is inapplicable.

II. Timeliness of Review /Mootness.

[115] The SBOE entered an order compelling discovery on April 12, 2000. W.R.A.P. 18.03(a) required a petition for review "within 11 days after entry of the order from which relief is sought." (A 2001 amendment changed the time to 15 days.) Exxon did not file its petition with the district court within that eleven-day period. The discovery dispute continued, and the SBOE entered additional discovery orders on October 2, 2000, and October 26, 2000. The October 26, 2000 order vacated the October 2, 2000 order and set specific times and procedures to follow in discovery. Exxon Mobil filed a petition for writ of review with the district court on November 2, 2000. The County argues that because no petition was filed within eleven days of the original order, the district court should have rejected Exxon Mobil's petition.

[116] Under WRAP. 18.01(b) the district court had discretion to grant Exxon Mobil's Petition for Writ of Review. We review the district court's decision to grant the petition for abuse of discretion. An abuse of discretion analysis considers the "reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

[117] The district court's decision to consider the petition was reasonable. The issues were not simple discovery disputes but questions about the availability and seope of an appeal before the SBOE. We issued our decision in Amoco Prod. Co. v. State Bd. of Equalization, 12 P.3d 668 (Wyo.2000), while the discovery dispute continued. That decision addressed, to some extent, the role of the SBOE in administrative appeals and contributed to the issues raised by Exxon Mobil. Exxon Mobil timely filed its petition for writ of review with the district court. The October 2000 orders differed from the April 2000 order and were appropriate for review.

[118] Under the SBOE orders compelling discovery, Exxon Mobil produced some of the discovery material and designated a substantial amount of additional material for discovery. Sublette County claims that neither the district court nor this court should consider the present petition for review because the discovery issues are moot. An issue is moot, and not reviewable on appeal, when an event occurs which makes a determination of the issues unnecessary. Davidson v. Sherman, 848 P.2d 1841, 1848 (Wyo.1998). An exception to the principle exists "when the case presents a controversy capable of repetition yet evading review." Id. This exeeption applies here. Although some discovery occurred, the central issue about the scope of an administrative appeal by a county remains, is likely to arise in other cases, and would evade review if we determined that the case was moot. We determine that this case was properly before the district court (and is properly before us).

III. Non Discovery Issues.

[119] The district court issued an order that reversed and vacated the SBOE's October 2000 discovery orders. It also ordered that the County's contested case was limited to "specific errors alleged to have been committed by the Department, not the taxpayer," and prohibited the SBOE from considering claims which would result in a separate audit of Exxon Mobil or would invade statutory functions of the DOR (such as selecting a valuation method). The County asserts that the district court lacked subject matter jurisdiction to address these additional matters because they were beyond the scope of the October 26, 2000 discovery order. The County characterizes these additional orders as "merely advisory" and improper.

[120] The County's argument fails for two reasons. First, the writ of review granted by the district court related to the proper scope of discovery in the case before the SBOE. The district court was required to define the extent of a contested case brought by a county in order to determine the appropriate scope of discovery. The district court's rulings about the seope of the case were not advisory but were an inherent part of its decision on the scope of discovery.

[121] Second, the County's position incorrectly limits the seope of a reviewing court's authority on a writ of review. When a writ of review is granted, the reviewing court "may set forth the particular issue or point of law which will be considered." W.R.A.P. 13.07 (emphasis added). The reviewing court's review is not limited to only an issue defined by the respondent. Instead the reviewing court may "reverse, vacate, remand or modify the decision for errors appearing on the record." W.R.A.P. 18.08 {emphasis added). The reviewing court can review the entire record for abuse of discretion. V-1 Oil Co. v. Ranck, 767 P.2d 612, 616 (Wyo.1989). The district court properly reviewed the seope of the contested case.

IV. County's Authority to Appeal.

[122] A county "has no sovereign power other than that granted by the legislature." River Springs Ltd. Liability Co. v. Board of County Comm'rs of County of Teton, 899 P.2d 1829, 1335 (Wyo.1995).

A county is a political subdivision of the state, created to aid in the administration of government.... As an arm of the state, the county has only those powers expressly granted by the constitution or statutory law or reasonably implied from powers granted.

Dunnegan v. Laramie County Comm'rs, 852 P.2d 1138, 1142 (Wyo.1993). No statute expressly grants counties in Wyoming the authority to file contested cases appealing ad valorem tax decisions. Several statutes allow the taxpayer or the DOR to appeal at various points in the ad valorem tax process, but none of the those statutes mention counties.

[123] Sublette County argues that Wyo. Stat. Ann. § 89-11-102.1(c) (Lexis 1999) implies the authority of a county to appeal ad valorem tax decisions to the SBOE. This statute states:

The state board of equalization shall perform the duties specified in article 15, seetion 10 of the Wyoming constitution and shall hear appeals from county boards of equalization and review final decisions of the department upon application of any interested person adversely affected, including boards of county commissioners for the purposes of this subsection, under the contested case procedures of the Wyoming Administrative Procedure Act.

On its face, this statute does not grant any authority to boards of county commissioners. It simply describes duties of the SBOE. The question here is whether the statutory obligation of the SBOE to review decisions on the application of boards of county commissioners impliedly empowers counties to bring those appeals.

[T24] This court has often discussed statutory construction.

[Wle look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. We have said that divergent opinions among parties as to the meaning of a statute may be evidence of ambiguity. However, the fact that opinions may differ as to a statute's meaning is not conclusive of ambiguity. Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court.

Campbell County Sch. Dist. v. Catchpole, 6 P.3d 1275, 1285 (Wyo.2000) (citations omitted).

[125] Wyo. Stat. Ann. § 89-11-102.1(8) (LexisNexis 2001) is subject to varying interpretations. It may mean that the SBOE must hear appeals brought by counties if counties are expressly granted the authority to appeal elsewhere, or it may mean that counties have the authority to file contested case appeals. If it grants such authority to counties, it may mean that counties only may file contested cases on issues not specifically addressed in other statutes, or it may give counties authority to challenge issues which other statutes reserve for the DOR or the state (Le., valuation method). This statute is ambiguous.

[126] The history of Wyo. Stat. Ann. § 30-11-102.1(c) (Lexis 2001) may be helpful in resolving the ambiguity. "Legisprudence (the jurisprudence of legislation)" is helpful in determining what the legislature intended. Parker Land & Cattle Co. v. Game & Fish Comm'n, 845 P.2d 1040, 1042 (Wyo.1993). In 1977, Wyo. Stat. § 39-1-304(a) read:

The state board of equalization shall perform the duties specified in article 15, seetion 10 of the Wyoming constitution and shall hear appeals from county boards of equalization, review state excise taxes and review their own assessments of property and tax determinations. In addition, the board shall: ...

Wyo. Stat. Aun. § 39-1-804(a) (Michie Dec. 1977 Rpl.) (Repealed).

[T27] Then, in 1991, Wyo. Stat. Ann. § 39-1-304(a) was amended to read:

The state board of equalization shall perform the duties specified in article 15, seetion 10 of the Wyoming constitution and shall hear appeals from county boards of equalization, review final decisions of the department on state excise taxes and review department assessments of property and tax determinations. In addition, the board shall: ...

Wyo. Stat. Ann. § 89-1-804(a) (Michie July 1994 Rpl.) (Repealed).

[T28] Next, in 1995, the statute was amended to read:

The state board of equalization shall perform the duties specified in article 15, seetion 10 of the Wyoming Constitution and shall hear appeals from county boards of equalization and review final decisions of the department upon application of any interested person adversely affected, including boards of county commissioners for the purposes of this subsection, under the contested case procedures of the Wyoming Administrative Procedure Act.... In addition, the board shall: ...

Wyo. Stat. Ann. § 39-1-304(a) (Michie 1997) (Repealed).

[¥29] Then, in 1998, the Wyoming tax statutes were recodified and renumbered by 1998 Wyo. Sess. Laws ch. 5. The above quoted part of § 39-1-804(a) became Wyo. Stat. Ann. § 39-11-102.1(c), but the wording remained identical. Wyo. Stat. Aun. § 39-11-102.1(c) (Michie 1998 Supp.).

[180] A basic tenet of statutory construction is that changes in statutes have meaning and that the legislature intended something when it changed a statute. State Bd. of Equalization v. Cheyenne Newspapers, Inc., 611 P.2d 805, 809 (Wyo.1980). Statutory construction should give meaning to every portion and not render any part meaningless or superfluous. Id. at 809. We conclude that by amending Wyo. Stat. Ann. § 39-11-102.1(c) in 1995, the legislature intended to grant counties the authority to file contested cases from final decisions of the DOR. Unfortunately, the legislature left intact several statutes which specify only the taxpayer and the Department as having rights to appeal. It did not indicate what decisions could be challenged by the county, or when. It failed to indicate how county appeals fit into the amended return and audit process. By granting counties the right to appeal, the legislature may have effectively eliminated any possibility of settlement of tax disputes under Wyo. Stat. Ann. § 39-11-108(b) (LexisNexis 2001) because, even if a dispute is settled, there is the risk of an appeal by a county. We urge the legislature to remedy these problems by clearly indicating its intent with respect to county appeals of ad valorem taxes and by clearly defining the seope and process for such appeals.

V. Scope of Appeal Authority.

[T31] Wyo. Stat. Ann. § 39-11-102(c) (LexisNexis 2001) is vague and ambiguous in that it fails to define the seope of a county's authority to appeal. Does it give a county authority to challenge valuation methods? Other statutes clearly give responsibility for valuation methodology to the DOR and taxpayer. Does this statute permit a county to audit a taxpayer? Can such an audit occur before the time to file amended returns expires or before the Department of Audit has completed its work?

[182] "Courts may try to determine legislative intent by considering the type of statute being interpreted." Basin Elec. Power Coop. v. Bowen, 979 P.2d 503, 509 (Wyo.1999). "Tax statutes are to be construed in favor of the taxpayer and are not to be extended absent clear intent of the legislature." Id. (citing Chevron, U.S.A., Inc. v. State, 918 P.2d 980, 985 (Wyo.1996)).

In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen.

Chevron, U.S.A., Inc. v. State, 918 P.2d 980, 984-85 (Wyo.1996) (citing Kelsey v. Taft, 72 Wyo. 210, 219-20, 263 P.2d 135, 138 (1953) (quoting Gould v. Gould, 245 U.S. 151, 153, 38 S.Ct. 53, 62 L.Ed. 211 (1917))). The same principles of strict construction apply to statutes which grant authority to political sub-entities. "Since enabling legislation, through which all subordinate governmental instru-mentalities must receive their authority, is a grant of sovereign power, it is subject to the usual rule of strict construction applicable to such grants." Norman J. Singer, Statutes and Statutory Construction § 64:1 (6th ed.2001 rev.) (footnote omitted). Because § 39-11-102.1(c) (LexisNexis 2001) is both a tax statute and one we are being asked to construe as a delegation of power from the State of Wyoming to the counties, we hold that it is appropriate to strictly construe it.

[133] Assuming that the legislature intended to give some degree of authority to counties to appeal in ad valorem tax cases, principles of strict construction require us to conclude that it did not intend the scope of such an appeal to extend into areas specifically addressed in other statutes. Specific statutes control over general statutes involving the same subject. Thunderbasin Land, Livestock & Inv. Co. v. Laramie County, 5 P.3d 774, 782 (Wyo.2000). Consequently, a county's appeal may not challenge valuation methodology. Such appeals are governed by Wyo. Stat. Ann. § 39-14-208(b) (LexisNexis 2001). Such an appeal may not challenge an annual value certification, as that matter is addressed by Wyo. Stat. Ann. §§ 39-18-102(n) and 89-14-209(b)(iv) (LexisNexis 2001). The County cannot force an audit of a taxpayer through a contested case, as that responsibility is given to the Departments of Audit and Revenue under Wyo. Stat. Ann. § 39-14-208(b) (LexisNexis 2001). It follows that the County's appeal must be limited in scope to specific errors allegedly committed by the DOR. Such a limited seope is exactly what the district court prescribed in its order on Writ of Review.

VI. Final Decision.

[134] Wyo. Stat. Ann. § 89-11-102.1(c) (LexisNexis 2001) states that the SBOE shall review final decisions. Here, Sublette County petitioned for review of a value certification. The decision of the DOR in making that value certification is anything but final, The taxpayer still can file an amended return. An audit can occur, and the value or tax can be adjusted over an eight-year period.

[185] In Amoco Production Co. v. State Bd. of Equalization, 7 P.3d 900 (Wyo. 2000), we held that a letter sent to a taxpayer after an audit constituted a final decision. At that point in time the DOR could do nothing more, and a final decision existed. That is the essential definition of a final administrative decision. It is "one ending the proceedings, leaving nothing further to be accomplished." MGTC, Inc v. Public Serv. Comm'n, 735 P.2d 103, 106 (Wyo.1987).

[136] The annual value certification for ad valorem tax is not a final decision. Much remains to be accomplished in the tax process at that time. It is only after the time for an audit has expired, or an audit is complete, and the DOR has assessed on the basis of the audit (Wyo.Stat.Ann. § 389-14-208(b)(v)(E)) that there is nothing more to be accomplished. Only then has the DOR made a final decision that a county may appeal. Appeals by a county before that point are exercises in futility. The contested case brought by Sublette County does not seek review of a final order. The district court's order must be modified to require dismissal of the contested case.

CONCLUSION

[137] The legislature apparently intended that counties have some right to appeal ad valorem tax assessments but failed to specify how or when such an appeal is available. Without other legislative direction, we conclude that such appeal rights under Wyo. Stat. Ann. § 39-11-102.1(c) (LexisNexis 2001) do not supercede specific statutes providing for review of various steps in the ad valorem taxation process, nor do they permit counties to usurp functions of other state agencies.

[138] The contested case here does not seek review of a final order. Consequently, we affirm the district court to the extent of its order and remand the case to the district court to require dismissal.

      . We note that by statute either the DOR or taxpayer may seek review at earlier stages in the taxation process.


author: MATTHEWS, Justice. FABE, Chief Justice,

text:
    David H. POTTER, Appellant, v. Shelly J. POTTER, n/k/a Shelly Brewster, Appellee.
    No. S-9951.
    Supreme Court of Alaska.
    Sept. 27, 2002.
    Donna C. Willard, Law Offices of Donna C. Willard, Anchorage, for Appellant.
    Joan M. Clover, Gruenberg, Clover & Holland, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

Under review in this case is an order that increased the child support that David H. Potter must pay and modified his visitation privileges. We conclude that the order is sustainable as to child support but not as to visitation because no notice was given that the latter issue was to be tried.

David Potter and Shelly Brewster divorced in 1990. The decree incorporated a custody and support agreement which nominally gave Brewster primary physical custody of the parties' daughter, Sunny, but included a detailed visitation order that essentially allowed the parties to have shared physical custody. Potter was to pay child support of $532 per month. Over the nine years that followed, the parties largely ignored the details of the visitation order but amicably shared custody and visitation. During much of this period, Sunny regularly stayed in Potter's home and may have spent as much time with him as with Brewster. But eventually Sunny began to spend less time with Potter and more with Brewster. By 1999, when she was fourteen years old, Sunny evidently lived full-time with Brewster and visited Potter only occasionally.

In May 1999 Brewster filed a pro se motion to increase child support payments, alleging that Sunny lived primarily with her. Potter, pro se, opposed the motion, essentially claiming that he had paid almost all of Sunny's expenses to date and had shared equally in her custody. The superior court scheduled an evidentiary hearing on the motion to increase child support for January 27, 2000.

By then both parties had hired attorneys. A week before the hearing Brewster's counsel filed two pleadings. The first was a motion to modify visitation and child support. The second was a motion to hold the first in abeyance. Brewster explained in a pleading filed January 27, 2000, that these motions were filed only as part of

a contingency plan. In the event Mr. Potter prevails and the court will not increase child support without modification of visitation ... Ms. Brewster will have in place, with an early filing date, an alternative method. Ms. Brewster does not really want to instigate a custody modification proceeding with the requisite best interests inquiry which would necessarily involve input from her 14-year-old daughter. Above all she wants to protect Sunny from involvement in litigation. Ms. Brewster believes that she is working on behalf of Sunny by seeking child support from her father which is both fair and necessary and if support can be modified without modifying the custody order, as is our position here, she will withdraw this secondary motion.

On January 27 the court decided to take testimony from Brewster but otherwise continue the scheduled hearing. The court described the issues and proceedings of that date in an order of February 18, 2000, as follows:

By the January 27 hearing, it was clear that there were a number of factual disputes regarding the incomes of the parties and the amount of time Sunny had been spending with each parent. It was also clear that counsel had not had sufficient time to investigate and prepare for an evidentiary hearing on all of these issues and that the issues concerning income were likely to be resolved by the parties if they had additional time to exchange doeu-ments. There were also a number of related issues in dispute. The most significant legal issues were (1) whether the court should decide child support on the basis of a sole custody calculation or a shared custody calculation and (2) whether the number of overnights allowed under the parties' settlement agreement or the actual number of overnights Sunny spent with Potter should control his child support obligation. The court agreed to hear testimony from Brewster since she and her counsel had traveled to Homer for the hearing, but to continue the hearing to allow the parties additional time to prepare. The court also agreed to address the legal issues described above before the next hearing. The court permitted counsel to supplement their briefing on the legal issues.

On February 23 the evidentiary hearing continued. At the outset, so that the issues to be tried would be "confined," Brewster's counsel sought a ruling that child support could be changed without modifying the visitation order. The superior court so ruled. The parties then proceeded to try the child support issue, understanding that the court had ruled that the parties' actual visitation practices would determine how child support would be calculated. After the February 28 evidentiary hearing the parties submitted final arguments in writing, both focusing entirely on issues of child support.

Several months after the parties submitted their final arguments, the superior court issued its written decision. The court changed child support from $532 to $997 per month. The court calculated child support under Civil Rule 90.8(a), relating to primary physical custody, rather than Civil Rule 90.3(b), relating to shared physical custody. The court also modified visitation, ruling that Potter would have "reasonable visitation" that was "to be determined by the parties with a focus on rebuilding the relationship between Sunny and Potter, and without concern for child support ramifications."

From this decision Potter appeals, making the following contentions:

1. That modifying visitation violated due process because he had no notice that visitation was at issue.

2. That modifying visitation was erroneous because there was no substantial change in circumstances.

8. That child support must be based on decreed visitation rather than the visitation practices of the parties.

4. That certain factual findings concerning visitation are clearly erroneous.

Brewster responds to these arguments as follows:

1. That due process was not violated because her contingent motion to modify the child custody agreement put visitation at issue and the court did not rule on her companion motion to hold the motion in abeyance.

2. That the parties' practices regarding visitation justified the change in visitation.

3. That the child support modification can be upheld based on the parties' actual visitation practices, even if it was error to modify visitation.

We agree with Potter that he was not given notice that modification of visitation would be at issue in the evidentiary proceedings and therefore the court's order regarding visitation does not satisfy due process. This conclusion moots his second argument. But we agree with Brewster that child support was properly modified prospectively based on the parties' visitation practices. Finally, we do not believe that the court's challenged findings of fact regarding visitation are clearly erroneous.

Our conclusion that the court erred in modifying the visitation decree without giving the parties notice that this was an issue for trial follows from the pretrial proceedings. Brewster argued that child support could be changed based on the parties' past practices with respect to visitation without changing the visitation decree. She wanted to avoid a trial regarding visitation modification because she believed that such a trial would involve the testimony of Sunny and she did not want Sunny to be involved. Potter, on the other hand, contended that child support must be based on decreed visitation and argued that if Brewster wanted increased support she would have to prosecute her motion to modify visitation. The superi- or court, wishing to avoid the "potential problem of Sunny getting involved in this whole dispute, as a player," agreed with Brewster and confined the issues as Brewster requested.

Due process under the Alaska Constitution requires, at a minimum, that parties be notified of the subject of proceedings concerning them so that they will have a reasonable opportunity to be heard. Here this requirement was not met. Potter was given no notice that modification of decreed visitation was at issue-indeed, based on the court's rulings, both parties reasonably expected that decreed visitation would not be at issue. Potter's due process rights were therefore violated.

We turn next to the question whether prospective child support can be modified based on the parties' actual, as distinct from decreed, visitation practices without also modifying the underlying visitation decree.

As noted, Potter argues that child support awards must be based on the visitation decreed in a governing order rather than the actual visitation practices of the parties. He cites the following language from Turinsky v. Long:

Child support awards should be based on a custody and visitation order. If the parties do not follow the custody order, they should ask the court to enforee the custody order or should move to modify the child support order.... We hold that the trial court erred to the extent it based its caleu-lation of support arrearages on the visitation exercised, rather than the visitation ordered.

Potter also quotes another case, Bennett v. Bennett, that explains the rationale underlying Turinsky as follows:

We established this principle to prevent parents from interfering with court-ordered custody and visitation in order to gain an increase in child support payments. We intended as well to encourage parents to either comply with court orders or to move to modify them in a timely manner.

Brewster responds that Potter is overgeneralizing from the quoted language in the Turinsky and Bennett cases. She points out that those cases both involved claims for past child support rather than, as here, an order setting child support prospectively. Brewster contends that applicable precedent is found in Boone v. Boone and in the commentary to Civil Rule 90.3, section V, paragraph C. In Boone, Brewster argues, this court held that a change in a child's residence from one parent to the other, contrary to a custody order, could serve as the basis for modifying child support. She points out that the support was changed prospectively after a motion to modify child support was made. This was accomplished even though the custody order was not modified during the same period.

Custody and visitation, on the one hand, and child support, on the other, are interrelated under Civil Rule 90.3. Ordinarily, when parties informally agree to make a change in decreed custody or visitation that is not merely temporary or experimental, the change should be reflected both in a changed custody or visitation order and in a changed child support order. As we stated in Morino v. Swayman:

[AJt some point, informal or de facto modifications of custodial or visitation arrangements should be formalized. Child support amounts and the number of visitation days allotted to the non-custodial parent are interdependent under Civil Rule 90.3(a) and (b). A premise of the rule is that it is in the best interests of the children that child support amounts bear a prescribed relationship to the time the children spend with each parent. But this can only be accomplished where the decree reflects actual practice. Thus, justice is best served if the child support amount reflects the actual responsibilities and burdens of the parties.

We believe that it is generally desirable to base prospective child support awards on prospectively applicable custody or visitation awards. But we agree with the commentary, and with Brewster's interpretation of Boone, that child support can be modified in recognition of a de facto change in visitation or custody without the de facto visitation or custodial change being formalized. There may be reasons of expediency justifying litigating child support before taking up issues of visitation or custody. Further, setting child support is in large part a predictive function. How much income will a parent make in the next year or two? The court must sometimes make what is little more than an educated guess based on the available evidence. And what has happened in the past is usually a strong component of the available evidence. Similarly, another component of child support, the amount of visitation a parent will exercise in the future, is also a prediction that can be based on past practices. By contrast, decreed visitation is ideal based-what is best for the child, and the parents? The best visitation practices may be worth retaining in a decree in the hope that they will occur, even if they are not consistent with what is likely to occur. Recognition of the difference between what should occur and what will probably occur seems to underlie the commentary's statement that support may be modified even if custody is not.

The commentary also stresses that its rule must not be used in a way that allows a custodial parent to profit by denying visitation. We agree and because of this risk and the various direct and indirect ways that visitation can be denied and discouraged we caution that only rarely should child support be set in an amount that reflects visitation practices different from decreed levels.

We conclude that the court did not err when it modified child support based on the parties' actual visitation practices and the child support modification can stand even though the modification of visitation must be reversed. |

Potter's final point is that the superior court erred in finding that the amount of time that Sunny has spent with Potter has decreased over the past few years and that Sunny has lived primarily with Brewster and has spent less than thirty percent of her time with Potter during that period. Findings of fact such as these must be upheld unless they are clearly erroneous. The findings in question are not clearly erroncous because they are supported by Brewster's testimony. Although her testimony on these points is contested by Potter, it is not inherently incredible.

Potter also argues that the court erred by "apparently" relying on visitation practices subsequent to Brewster's motion to modify child support. Potter is correct that post-litigation events should either be discounted entirely or viewed with suspicion as evidence of the parties' practices. But here there is little to indicate that the court relied on post-litigation events and virtually nothing shows that they played an important role in the court's findings. We therefore find no error on this point.

We conclude for the reasons stated that the court's decision must be vacated insofar as it modified the 1990 decree as to visitation, but that it should be affirmed as to child support.

AFFIRMED in part and VACATED in part.

FABE, Chief Justice, with whom CARPENETI, Justice, joins, dissenting.

FABE, Chief Justice,

with whom CARPENETI, Justice, joins, dissenting.

I disagree with the court's conclusion that David Potter had inadequate notice of Shelly Brewster's desire to modify the visitation schedule to reflect the parties' current visitation practice. I also disagree that the superior court's decision modifying visitation surprised Potter or deprived him of his right to due process. Potter was well aware of Brewster's motion to modify the visitation schedule and, in fact, he characterized her attempt to modify child support to reflect current practice as "a de facto request to modify the child custody agreement." Moreover, in light of the majority's affirmance of the trial court's child support modification, its decision to remand this case for the sole purpose of requiring a new hearing on whether the visitation schedule should be modified is a waste of the trial court's valuable resources. Sunny is now within four months of her eighteenth birthday. She is long past the point of ceding any real authority in matters of visitation to any of the adults involved. To remand this case for further litigation at this point will accomplish more harm than good.

There are a number of places in the trial court record that reflect Potter's awareness that the visitation schedule was at issue. On January 20, 2000, Brewster filed a motion to modify visitation to reflect the parties' de facto modification of the visitation schedule as well as a motion to modify child support to reflect the actual visitation schedule. Judge Neville explicitly stated at the initial hearing on January 27, 2000 that Brewster's motion for modification squarely raised the issue of whether Brewster had primary physical custody of Sunny, thus requiring calculation of child support under the primary physical custody schedule of Rule 90.8(a). "[Tlhe real issue is going to end up being the sole or shared custody formula, which is, in large part, a legal issue as well as a factual issue." The trial court also noted in its preliminary decision that "[al fair reading of Brewster's statements in the documents she initially filed was sufficient to give Potter adequate notice that Brewster claimed to have primary physical custody of Sunny and wanted child support to be calculated on that basis." If Potter disagreed, Judge Neville gave him the opportunity to prove otherwise at the second hearing: "Potter's current child support obligation should therefore be determined on [primary physical custody] unless he can establish that there has been a de facto permanent modification based on Sunny spending at least 110 overnights per year with him." Finally, as Potter recognized in a February 4, 2000 memorandum on the law to be applied in the case:

Before the Court are two interrelated issues; a motion to amend the level at which the child support payments originally were set as well as a de facto request to modify the child custody agreement. While Shelly undoubtedly will quarrel with the latter statement, it in fact is correct because she is contending that David voluntarily has waived his rights of visitation and further is assuming that he will continue to do so in the future. Only under those cireumstances would amendment of the child support obligation be warranted. However, as will now be demonstrated neither proposition is well-taken, albeit for differing reasons.

(Emphasis added.)

In this memorandum, Potter further argued that Brewster had failed to make a prima facie showing of a substantial change in circumstances justifying a change in visitation and that rather than relying on a de facto change in visitation, Brewster "should be required to pursue that objective forthrightly and immediately."

We dealt with a similar situation in Siekawitch v. Siekawitch. There, the parents agreed to share legal custody of the children, give the father physical custody, and determine a reasonable visitation schedule. After the parents could not agree on visitation, the mother filed a motion for a specific custody schedule, and the court ordered each party to submit a visitation plan. The mother proposed that the children alternate between the parents weekly during the school year and every two weeks during the summer. The father proposed that the children spend three weekends per month and one night per week with their mother during the school year, and spend alternating weekends and one week per month with their mother during the summer. Following a hearing, the court ordered that each parent would have the children fifty percent of the time.

The father appealed, arguing that the superior court violated his due process rights by failing to notify him of its intention to modify custody. He contended that "he believed the sole purpose of the hearing was to establish a visitation schedule, and that he was therefore denied the opportunity to call witnesses and present evidence on the issue of physical custody." We rejected the father's argument, because the father had sufficient notice that the mother sought equal time with the children: In her proposed visitation schedule and reply to the father's opposition to the motion, she requested equal time with the children. Moreover, the father expressly acknowledged that the mother sought equal custody in his opposition. We concluded:

Although there may have been confusion about whether to characterize the time that [the mother] sought with the children as visitation or physical custody, the record discloses that [the father] had notice at the time of the hearing that she sought equal time. In light of these facts, we conclude that [the father's] right to due process was not violated.

In January 2000 Brewster filed a motion to both modify visitation to reflect the parties' de facto modification of the visitation schedule and modify the child support to reflect that schedule modification. Brewster's purpose was to ensure that a motion to modify visitation was in place in case the trial court felt that formalization of the de facto visitation schedule was necessary to modify child support. Judge Neville's statements at both hearings, her preliminary decision, and Potter's comments demonstrate that he had sufficient notice that resolution of the child support issue rested upon the court's determination whether Brewster had exercised primary physical custody of Sunny in the past and whether continuation of such a custody arrangement and visitation schedule and modification of child support should oceur in the future. I therefore respectfully dissent from the court's opinion.

      . See, e.g., D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 212-14 (Alaska 2000).

      2. 910 P.2d 590, 595 (Alaska 1996).

      . 6 P.3d 724 (Alaska 2000).

      4. Id. at 727.

      . 960 P.2d 579 (Alaska 1998).

      . Section V, paragraph C of the commentary states:
      Failure to Exercise Shared Custody. An inequity may arise under the shared custody calculation of support if the obligor does not actually exercise the custody necessary to make shared custody applicable (Le., at least 30% of the time). If the obligor parent does not actually exercise sufficient physical custody to qualify for the shared custody calculation in the rule (at least 110 overnights per year-See Commentary, Section V.A), then (a)(2) of this rule will apply to the child support calculation. Failure to exercise custody in this regard is grounds for modification of support, even if the custody order is not modified. However, this provision may not be interpreted to allow the custodial parent to profit by denying visitation.

      . 960 P.2d at 582.

      . Id.

      . Id.

      10. 970 P.2d 426, 429 (Alaska 1999).

      . See Alaska R. Civ. P. 90.3 cmt. V.C.

      . Id.

      . See Yerrington v. Yerrington, 933 P.2d 555, 557-58 (Alaska 1997).

      . See Alaska R. Civ. P. 90.3 cmt. III.E.

      . See Alaska R. Civ. P. 90.3 cmt. V.C.

      . Alaska R. Civ. P. 52(a).

      . See, e.g., Karpuleon v. Karpuleon, 881 P.2d 318, 321-322 (Alaska 1994).

      . 956 P.2d 447 (Alaska 1998).

      . Id. at 448.

      . Id. at 449.

      . Id.

      . Id.

       . Id. Unlike the father in Siekawitch, Potter was never awarded primary physical custody.

      . Id.

      . Id. at 450.

      . Id. (footnote omitted).