author: VOIGT, Justice.

text:
    2004 WY 75
    BOX L CORPORATION, a Wyoming corporation, Russell Lucas and Jim Lucas, d/b/a Lazy Double A Ranch, Appellants (Plaintiffs), v. TETON COUNTY, Wyoming, by the BOARD OF COUNTY COMMISSIONERS OF TETON COUNTY, Consisting of Jolynn Coonce, Bob Shervin, Bill Paddleford, Sandy Shuptrine and Andy Schwartz; and Gros Ventre Utility Company, a Wyoming corporation, Appellees (Defendants).
    No. 03-153.
    Supreme Court of Wyoming.
    June 29, 2004.

      Representing Appellants: William L. Miller of Miller & Fasse, P.C., Riverton, Wyoming.
    Representing Appellee Board of County Commissioners of Teton County: James L. Radda, Deputy County Attorney, Jackson, Wyoming.
    Representing Appellee Gros Ventre-Utility Company: Christopher H. Hawks of Christopher Hawks, P.C., Jackson, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[11] Servient estate owners brought a declaratory judgment action challenging a county's agreement with a utility company for use of a public road easement. The servient estate owners now appeal the district court's order granting the county and the utility company judgment on the pleadings. We affirm.

ISSUES

1. May the grantee of a public road easement convey to another the right to use the right-of-way? ‘

2. May a public road easement be used for purposes other than road travel?

STANDARD OF REVIEW -

[12] We recently reiterated our standard of review of a judgment on the pleadings in Rodriguez v. Casey, 2002 WY 111, ¶ 4, 50 P.3d 323, 325 (Wyo.2002):

W.R.C.P. 12(c) provides, in part, for motions for judgment on the pleadings:
"Motion for judgment on the pleadings. -After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings."
We have a well-established standard for application of this rule:
"A defendant is entitled to judgment on the pleadings if the undisputed facts appearing in the pleadings, supplemented by any facts of which the district court may take judicial notice, establish that no relief can be granted.... A judgment on the pleadings is appropriate if all material allegations of fact are admitted in the pleadings and only questions of law remain."
Greeves v. Rosenbaum, 965 P.2d 669, 671 (Wyo.1998) (citing Johnson v. Griffin, 922 P.2d 860, 861-62 (Wyo.), cert. denied, 519 U.S. 971, 117 S.Ct. 402, 136 L.Ed.2d 316 (1996)). Our review is akin to consideration of a motion to dismiss under W.R.CP. 12(b)(6) for failure to state a claim upon which relief can be granted. Greeves, 965 P.2d at 672. We consider the allegations of the complaint to be true, and view them in the light most favorable to the plaintiff. Id.

FACTS

[13] This controversy concerns the Spring Gulch Road, in Teton County, Wyoming. In 1975, Phillip W. Lucas (Lucas) granted to Teton County (the County) a Right of Way Easement for that portion of the Spring Gulch Road crossing his lands. The purpose of the easement was "to lay out, construct, inspect, operate and maintain a road for the use of the public...." Lucas granted the easement for a nominal fee, as a good citizen and neighbor.

[14] In 1981, Clifford P. Hansen, Martha C. Hansen, Peter B. Mead, Mary H. Mead, and Spring Creek Ranch Company (collectively Hansen/Mead) granted to the County a Spring Gulch Road Easement and Agreement for that portion of the Spring Gulch Road crossing their properties. The purpose of the easement was "to lay out, construct, operate and maintain a road thereon for the use of the public and for the placement of utilities...." The easement was to be perpetual and was to "inure to the benefit of the parties, their respective heirs, personal representatives, successors and assigns." The easement was granted for a nominal fee, as good citizens and neighbors.

[T5] In 1987, Box L Ranch (Box L) granted to the county and its successors and assigns, an Eagement for that portion of the Spring Gulch Road crossing its lands. The purpose of the easement was "to lay out, construct, inspect, operate and maintain a road for the use of the public...." Box L granted the easement for a nominal fee, as a good citizen and neighbor.

[16] In 2002, the County and Gros Ven-tre Utility Company (Gros Ventre) entered into a Spring Gulch Road Right-of-Way Use Agreement (the Use Agreement). The purpose of the Use Agreement is to allow Gros Ventre, a wholly-owned subsidiary of the Jackson Hole Golf & Tennis Club, Inc., to construct "an eight (8) inch waste water interceptor line or main and appurtenant structures specifically including manholes for the purpose of connecting the current and proposed development at Jackson Hole Golf and Tennis Club, Teton Shadows, and possibly other adjacent development to the Town of Jackson Waste Water Collection and Treatment System." Gros Ventre is to pay the County $280,000.00 for the right to use the right-of-way.

[T7] The appellants are the current owners of the servient estates in the Lucas and Box L Easements. Their complaint sought from the district court a declaration that the County did not have the right to convey to Gros Ventre the right to use the right-of-way covered by the easements, and also sought an order enjoining the County from transferring any interest in the easements to any non-public entity or for any non-public use.

DISCUSSION

[T8] In their Joint Motion for Judgment on the Pleadings, the County and Gros Ven-tre first noted that Gros Ventre is a public utility, and then presented three arguments supporting the legality of the Use Agreement: (1) the easements are assignable by their very terms; (2) commercial easements in gross are freely assignable; and (3) the proposed sewer line does not exceed the scope of the public road easements. The appellants' traverse to the motion contended in response that: (1) pursuant to Public Service Commission v. Formal Complaint of WWZ Co., 641 P2d 183, 187 (Wyo.1982), Gros Ventre, as a private sewage disposal company, is not a public utility; (2) the casements do not contain express assignment provisions; (8) the intent of the parties to the easements was limited to a roadway; (4) easements in gross are not freely assignable; (5) the proposed sewer line is not for the benefit of the public; and (6) the County cannot transfer an easement upon an easement. The parties make the same arguments on appeal.

[19] The district court issued its decision letter on September 8, 2002, granting judgment on the pleadings to the County and Gros Ventre on two grounds: (1) commercial easements in gross are alienable; and (2) public road easements may be used for other purposes, including sewer lines. The district court added that, the appellants having conceded that the County could install a sewer line, it should make no difference that this sewer line was being installed by a private company. Finally, the district court noted that it did not appear the appellants were injured by the project.

Discussion of the specific issues of this case best takes place in the context of the general law of easements. An easement is " 'an interest in land which entitles the easement holder to a limited use or enjoyment over another person's property" Hasvold v. Park County School Dist. No. 6, 2002 WY 65, ¶ 18, 45 P.3d 635, 638 (Wyo.2002) (quoting Mueller v. Hoblyn, 887 P.2d 500, 504 (Wyo.1994)). We attempt to ascertain the intent of the parties to an casement first from its language, and we resort to extrinsic evidence only if we find that language ambiguous. Hasvold, 2002 WY 65, ¶ 13, 45 P.3d at 638. Of particular pertinence to the present case is the distinction between an appurtenant easement and an easement in gross:

"* "An easement is appurtenant to the land when the easement is created to benefit and does benefit the possessor of the land in his use of the land."" Weber v. Johnston Fuel Liners, Inc., 519 P.2d 972, 975 (Wyo.1974) (quoting Restatement of Property § 458, at 2914 (1944)). In contrast, ° "[an easement is in gross when it is not created to benefit or when it does not benefit the possessor of any tract of land in his use of it as such possessor." ' Id. (quoting Restatement of Property, supra, § 454, at 2917). An easement will not be presumed to be in gross when it can fairly be construed to be appurtenant. Id." '

Hasvold, 2002 WY 65, ¶ 14, 45 P.3d at 638 (quoting RCR, Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo.1999)). The parties concur that the Lucas and Box L easements are ecagements in gross.

[111] Generally, the law favors the free alienability of property interests. 63C Am.Jur.2d Property § 35 at 108 (1997). This public policy has been articulated as follows:

"Property interests are, in general, alienable. If a particular property interest is not alienable, this result must be due to some policy against the alienability of such an interest. The policy of the law has been, in general, in favor of a high degree of alienability of property interests. This policy arises from a belief that the social interest is promoted by the greater utilization of the subject matter of property resulting from the freedom of alienation of interests in it."

Thar v. Edwin N. Moran Revocable Trust, 905 P.2d 413, 415 (Wyo.1995) (Thomas, J., dissenting) (quoting Restatement of the Law of Property § 489, emt. a (1944)). See also Williams v. Watt, 668 P.2d 620, 635 (Wyo.1983) (Thomas, J., specially concurring); Hartnett v. Jones, 629 P.2d 1357, 1361 (Wyo.1981); and McGinnis v. McGinnis, 391 P.2d 927, 933 (Wyo.1964)."

[112] This general rule of free alienability, however, has limited application to easements. An appurtenant easement is tied to the dominant estate, is conveyed with a conveyance of that estate, and cannot be conveyed independently thereof. Voss v. Albany County Com'rs, 2003 WY 94, ¶ 28, 74 P.3d 714, 723 (Wyo.2003); Baker v. Pike, 2002 WY 34, ¶ 14, 41 P.3d 537, 542 (Wyo.2002); Weber v. Johnston Fuel Liners, Inc., 519 P.2d 972, 976-77 (Wyo.1974); 25 Am. Jur.2d Easements and Licenses § 108 (1996). Traditionally, easements in gross, having no dominant estate to which to be attached, were considered personal to their holder and, as such, non-assignable. 25 Am.Jur.2d, supra, at § 102; Alan David Hegi, Note, The Easement in Gross Revisited: Transferability and Divisibility Since 1945, 39 Vand. L.Rev. 109, 118 (1986). A distinction has developed, however, between commercial easements in gross and noncommercial easements in gross, the former, but not the latter, being found by many courts to be assignable. Hegi, supra, 39 Vand. L.Rev. at 117-18. See, for example, Champaign Nat. Bank v. Illinois Power Co., 125 Ill.App.3d 424, 80 Ill.Dec. 670, 465 N.E.2d 1016, 1021 (1984); Mumaugh v. Diamond Lake Area Cable TV Co., 183 Mich.App. 597, 456 N.W.2d 425, 430 (1990); Kansas City Area Transp. Authority v. Ashley, 485 SW.2d 641, 645 (Mo.App.1972); Sunset Lake Water Service Dist. v. Remington, 45 Or.App. 973, 609 P.2d 896, 899 (1980); and Johnson v. Higley, 989 P.2d 61, 66-67 (Utah App.1999), cert. denied, 994 P.2d 1271 (Utah 2000). This court has not previously decided whether commercial easements in gross are freely assignable. Thar, 905 P.2d at 414.

[113] The application of this distinction between commercial and noncommercial easements in gross to public easements was discussed in Hegi, supra, 39 Vand. L.Rev. at 118-19 (footnotes omitted and emphasis in original):

Courts readily acknowledge the distinction between commercial and noncommercial easements in gross when evaluating whether to permit the transfer of public commercial easements in gross. Public commercial easements include those held by governmental units and public utilities. In addition to the policy that traditionally supports the transferability of commercial easement interests, the courts have noted another reason for justifying the free transferability of public commercial easements in gross: the benefit that the casement provides inures to the entire community, rather than to one individual or business. In Champaign National Bank v. Illinois Power Co., [465 N.E.2d at 1017-18] for example, the court rejected plaintiff's attempt to thwart the transfer of a right of way easement in gross to defendant power company for the construction of power lines. Stating that "commercial easements in gross are alienable, especially when the easements are for utility purposes," the court upheld the transfer, finding that it served the public's interest.

[114] One of the facts contested in the present appeal is whether Gros Ventre is a public utility. This issue, however, was not raised in the pleadings, and was not addressed by the district court in its decision letter or order. While both sides have briefed and vigorously argued the matter, and while Gros Ventre asks this Court to take judicial notice of its purported status as a public utility, we decline to address the question because this is the review of a judgment granted on the pleadings.

[{15] It is at this point that we must detour from the assessment of this case as presented by the parties. The question is not simply whether a public commercial casement in gross may be assigned to an entity such as Gros Ventre. To begin with, there is a question of whether the Use Agreement is actually in the nature of an assignment. "An assignment is an act or expression of intention by which one person causes to transfer, set over or vest in another a right of property or an interest therein." Matter of Boyd's Estate, 606 P.2d 1243, 1246 (Wyo.1980). In turn, a transfer contemplates a conveyance from one person to another or the passage of something from one person to another. Merriaom-Webster's Collegiate Dictionary 1253 (10th ed.1999). Here, the County has simply allowed Gros Ventre to use a public easement; this was not an assignment of the easement from one entity to another.

[116] This situation may be more akin to what has been described as the "divisibility" of an easement, in contrast to its "assignability:"

The courts' and legislatures' recognition that easements in gross are transferable raises a related question-the divisibility of easements in gross. Divisibility differs from transferability because the original holder of the easement grants only a portion of his rights to another while retaining the remainder of his original rights for his own use. Divigibility, however, cannot arise as an issue unless courts first recognize transferability. If a court does not permit the transfer of an easement in gross as a whole, a court clearly will not permit a partial transfer of the easement.

Hegi, supra, 89 Vand. L.Rev. at 128 (footnote omitted). See also Salvaty v. Falcon Cable Television, 165 Cal.App.3d 798, 212 Cal.Rptr. 31, 35 (1985). As a general rule, courts have allowed the division of an easement where such has not increased the burden on the servient estate. Hegi, supra, 39 Vand. L.Rev. at 128-84.

[T 17] In a roundabout fashion, and without yet having determined the first issue, this leads us to the second issue, which is whether a public road easement may be used for purposes other than road travel. We answered this question affirmatively in State v. Homar, 798 P.2d 824, 826 (Wyo.1990):

The rights of the easement holder in another's land are determined by the purpose and character of the easement. Bard Ranch Co. v. Weber, 557 P.2d 722, 731 (Wyo.1976). The manner in which the easement is used does not become frozen at the time of grant. Id. An easement for a road or a highway does not limit its use to. the movement of vehicles. Uses related to traffic movement are within the seope of the easement. The grant of a public road easement embraces every reasonable method of travel over, under and along the right-of-way. - Herold v. Hughes, 141 W.Va. 182, 90 S.E.2d 451, 458 (1955). Thus, the running of power and telephone lines above the ground and pipelines underneath do not increase the burden on the servient estate and are permissible uses. E.g., Bentel v. County of Bannock, 104 Idaho 130, 656 P.2d 1383 (1983); Fisher v. Golden Valley Elec. Ass'n, Inc., 658 P.2d 127 (Alaska1983). See W.S. 1-26-813.[] The reason underlying this policy is that the services and products these conveyances provide may change from earlier times when they were provided by messengers and freight wagons. Change was contemplated and must be accommodated in an advancing society. Thus, overhead transmission lines and underground pipelines are simply technologically advanced adaptations of traditional highway uses. Fisher, 658 P.2d at 129.

[118] The district court relied upon Ho-mar and upon the Bentel case cited in Ho-mar in reaching its decision in this case.: We also find Bentel particularly instructive because it holds not only that a public road easement may be used for an underground sewer line, but also that such right is not defeated solely because the sewer line is to be constructed by a private entity:

Plaintiffs next argue that the county was without authority to grant permission to lay this particular pipeline within its casement because the pipeline is intended primarily for the benefit of, and will be owned by, the J.R. Simplot Co., a private corporation. We disagree. It is clear from the contract that the City of Pocatello will derive a direct and substantial benefit from construction of the pipeline, and that public benefit makes construction of the pipeline allowable within the seope of the county's public easement. Even were this not so, the county is not precluded from believing that the pipeline is in the public interest. The pipeline will directly produce local environmental benefits by reducing the amount of effluent discharged by Simplot into the Portneuf River. Not only does common sense lead us to recognize this as beneficial, but we note that both Congress and our state legislature have found such reductions in effluent discharge to be in the public interest. ... Furthermore, there is a presumption that the governing body's grant of use of a public easement is in the public interest.... This Court has recognized in other contexts that the fact that a private party may reap a special benefit from governmental action does not of itself militate against recognizing that the public interest is being served.

Bentel v. Bannock County, 104 Idaho 130, 656 P.2d 1383, 1387-88 (1988).

[119] The court in Bentel, 656 P.2d at 1388, cited the following cases as being in agreement with the above statement of law: City of Phoenix v. Phoenix Civic Auditorium & Convention Center Ass'n, Inc., 99 Ariz. 270, 408 P.2d 818, 823 (1965); McTaggart v. Montana Power Co., 184 Mont. 329, 602 P.2d 992, 996 (1979); Town of Steilacoom v. Thompson, 69 Wash.2d 705, 419 P.2d 989, 992 (1966); and State ex rel. York v. Board of Com'rs of Walla Walla County, 28 Wash.2d 891, 184 P.2d 577, 583 (1947). The first three cited cases do contain similar conclusions, although in the eminent domain context. The fourth cited case is a public easement case and, although much of its discussion is based in statutory construction, we find its analysis compelling:

Normally, the interest acquired by the public is but an easement.... But whatever the nature of the interest may be, it is held in trust for the public, and the primary purpose for which highways and streets are established and maintained is "for the convenience of public travel." ...
In addition to this primary purpose, however, there are numerous other purposes for which the public ways may be used, such as for watermains, gas pipes, telephone and telegraph lines, etc. These are termed secondary uses and are subordinate to, and permissible only when not inconsistent with, the primary object of the highways....
There is no contention that [the statute at issue] is unconstitutional, but it is asserted by the appellants that the franchise with which we are here concerned does not meet the terms of the statute. The point urged by them is that, as a matter of law, a franchise issued to a private corporation not intending to serve the general public cannot be "for the public interest." They insist that "public interest" is "public use," and no more.
We are of the further opinion that it cannot be held, as a matter of law, that a co-operative association engaged in the business of generating, purchasing, acquiring, selling, and distributing electric power for the benefit of its members is not acting for the public interest....
I. The fact that highways are dedicated to public use implies that they must be maintained primarily as public ways; and "* * * these public ways must be kept free from obstructions, nuisances, or unreasonable encroachments which destroy, in whole or in part, or materially impair, their use as public thoroughfares." . ..
II. Subject to this primary use, highways may be put to any of the numerous incidental uses suitable to public thoroughfares.... The public easement "* * * includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities which the advance of civilization may render suitable for a highway."
"The restrictions upon its use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement, and the inconveniences must be submitted to [by abutting owners] when they are only such as are incident to a reasonable use under impartial regulations."

State ex rel. York, 184 P.2d at 581-84 (quoting 4 MecQuillin, Municipal Corporations § 1487 (@nd ed.); McCullough v. Interstate Power & Light Co., 163 Wash. 147, 300 P. 165, 166 (1931); and Omaha & Council Bluffs St. Ry. Co. v. City of Omaha, 114 Neb. 483, 208 N.W. 123, 124 (1926)).

[T20] It must be remembered that every member of the public has the right to use a public easement for its intended purposes, and that public road easements, unless otherwise restricted, include the see-ondary rights described herein. The grantee of a public road easement must, in granting special use of the easement for a particular purpose, protect the general public's use of the easement and must ensure that the public interest is served by the special use. That does not mean that the special use must be available to all of the public or that there can be no private benefit from the special use.

[T21] The Use Agreement entered into between the County and Gros Ventre contains the following provision:

8. Public benefit The parties have undertaken extensive studies and reviews of the benefits of the Jackson Hole Golf and Tennis Club development being serviced by the Town of Jackson for its waster [sic ] water treatment needs. The parties have determined and agreed after consultation with and written recommendations from the Wyoming Department of Environmental Quality to the effect that waste water treatment needs of the development are best met by connection to the Town of Jackson Waste Water Treatment Plant, that it is in the best interests of the Jackson Hole Golf and Tennis Club development and the environment and health and safety of county residents that provisions be made for the connection as in this agreement set forth.

[122] It is not our job to second-guess the County as to this determination and there is nothing contained within the pleadings that even suggests the statement is erroneous. We conclude that the Use Agreement is in the public's interest, that it fits within the seope and purpose of the Lucas and Box L easements, and that Teton County was within its rights to enter into the agreement. >

[1238] We hold that the right to use a public road easement, whether or not such easement is considered to be a commercial easement in gross, is transferable and divisible, so long as the transfer or division is in the public interest, and so long as the burden on the servient estate is not thereby increased. This right is not dependent upon specific language in the easement grant allowing such assignment or division, but is, as a matter of law, part of the purpose of a public road easement. Not presently at issue is the question of whether this right may be defeated by specific language to the contrary contained in. an easement grant.

[124] We further hold that a proposed use of a public easement may be in the public interest despite the fact that a private entity intends to construct the pro-jeet and despite the fact that a private entity may reap some benefit from the project. Similarly, a proposed use of a public road easement does not have to be intended to serve all the members of the general public to be in the public interest and to fit within the purpose of a public road easement.

[T25] The order of the district court is affirmed.

      . Because this appeal is from a judgment on the pleadings, we are compelled to mention an anomaly in the record. Apparently, the appellants filed two motions to amend their complaint, the second of which was granted. That motion does not appear in the record, and neither does an amended complaint. The parties have stipulated for purposes of this appeal that the clerk of the district court transmitted to this Court a reformulated version of the original complaint, which is the document upon which we have based our review. -

      . At this point, we must mention another anomaly in the record. Attached to the complaint, but not mentioned therein or anywhere else in these proceedings, is a fourth easement, this one dated in 1979 and being from Roderick P. Lucas and Box L Ranch, Inc., to the County. Entitled Right of Way Easement, it is identical in form to the easement granted by Phillip W. Lucas in 1975, although it does not appear to concern the same property. The parties have not explained or even. mentioned this easement, and we will not speculate as to its effect.

      . Bradford Mead, as personal representative of the estate of Mary H. Mead, was a plaintiff below, but did not join in the appeal.

      . Wyo. Stat. Ann. § 37-1-101(a)(vi) (LexisNexis 2003) states, in part:
      'Public utility" means and includes every person that owns, operates, leases, controls or has power to operate, lease or control:

      (E) Any plant, property or facility for the supply, storage, distribution or furnishing to or for the public of water for manufacturing, municipal, agriculture or domestic uses, except and excluding any such plant, property or facility owned by a municipality[.]

      . Because the district court's decision as to the Hansen/Mead easement was not appealed, and because no argument has been raised concerning the 1979 Roderick P. Lucas easement, we will concern ourselves only with the 1975 Lucas easement and the 1987 Box L easement.

      . Wyo. Stat. Ann. § 1-26-813 (LexisNexis 2003) states, in part:
      Corporations authorized to do business in this state for the purpose of constructing, maintaining and operating a public utility may set their fixtures and facilities along, across or under any of the public roads, streets and waters of this state in such manner as not to inconvenience the public in their use.

      . For two reasons, we do not choose simply to state that we hereby adopt Restatement of Property § 489 at 3040 (1944) ("Easements in gross, if of a commercial character, are alienable property interests."). First, Restatement of Property Third (2000) has significantly restructured its approach to this area of the law, and this restructured law has not been addressed in the present case. And second, the present case is limited to the particular aspects of a public road easement.


source: Caselaw Access Project

license: Public Domain

text:
    2004 WY 76
    Albert PAULEY, Appellant (Plaintiff), v. Deborah NEWMAN, Appellee (Defendant).
    No. 03-90.
    Supreme Court of Wyoming.
    June 29, 2004.

      Representing Appellant: Tom Sedar and Mel Dunn, Casper, Wyoming.
    Representing Appellee: Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming.
    Before GOLDEN, LEHMAN, and VOIGT, JJ., and RYCKMAN, and GUTHRIE, D.JJ.
   VOIGT, Justice.

[11] In January 2000, Albert Pauley slipped on iee and fell on the sidewalk near Deborah Newman's garage. In the ensuing lawsuit, a Natrona County jury found that the ice upon which Pauley (the appellant) fell was from a natural accumulation of snow or water and the district court entered a judgment in favor of Newman (the appellee). The appellant subsequently filed a motion for a new trial, which motion the district court denied. On appeal, the appellant claims error in a jury instruction and the verdict form, and that the district court abused its discretion in denying the appellant's motion for a new trial. We affirm.

ISSUES

1. Whether the jury instructions were erroneous or prejudiced the appellant?

2. Whether the district court erred in denying the appellant's motion for a new trial?

FACTS

[T2] The appellant and the appellee were neighbors. On January 9, 2000, the appellant took his dog for a morning walk. According to the appellant, it rained or had been "spitting rain" the night before; the weather was clear the morning of January 9th, but it remained "kind of wet outside," the sidewalks were "damp" and contained a "skiff of sleet...." The appellant did not encounter any "slick spots" during his walk until he reached a shaded area on the sidewalk near the north side of the appellee's detached garage, where the appellant "slipped on ice and fell." He "jammed" his elbow as a result of the fall and subsequently underwent surgery to repair a torn rotator cuff.

[T3] At trial, the appellant's expert witness, a mechanical engineer, opined that the water (or "most" of the water) that formed the ice upon which the appellant fell came from a downspout attached to the appellee's garage, but acknowledged on cross-examination that it was "possible" the appellant could have fallen on ice that formed due to the precipitation the night before.

[T4] The appellant testified that the ap-pellee "always kept her sidewalk clean" and did not recall encountering ice prior to January 9th in the area where he fell, although he sometimes encountered snow "right in front of [the appellee's] garage because ... it's shaded...." The appellant also vaguely recalled that when the appellee assisted him immediately after the fall, the appellee stated that "somebody [had] just about fallen there before." The appellee testified that the appellant's fall was the first time in twenty years of living at that location that she was aware of a problem with ice or anyone falling on her sidewalk. A ~

[15] In August 2002, a jury concluded that the appellant fell due to a natural accumulation of snow or water. Based on that finding, the district court entered a judgment in favor of the appellee. The appellant filed a motion for a new trial, which motion the district court denied. The appellant appeals from the judgment entered in favor of the appellee, and from the district court's denial of his motion for a new trial.

STANDARD OF REVIEW

[T6] We review alleged jury instruction error as follows:

"In considering the validity of instructions to a jury, we must determine whether the instructions, taken as a whole, adequately advised] the jury of the applicable law. Banks v. Crowner, 694 P.2d 101 (Wyo.1985). Proper instructions should be clear declarations of the pertinent law. Short v. Spring Creek Ranch, Inc., 731 P.2d 1195 (Wyo.1987). The ruling of a trial court on an instruction will not constitute reversible error unless there is a showing of prejudice, which connotes a demonstration by the complaining party that the instruction misled or confused the jury with respect to the applicable principles of law. DeJulio v. Foster, 715 P.2d 182 (Wyo.1986)."

Ormsby v. Dana Kepner Co. of Wyo., Inc., 997 P.2d 465, 471 (Wyo.2000) (quoting L.U. Sheep Co. v. Board of County Com'rs of County of Hot Springs, 790 P.2d 663, 672 (Wyo.1990)). See also Jensen v. Fremont Motors Cody, Inc., 2002 WY 173, ¶ 12, 58 P.3d 322, 326 (Wyo.2002). "To measure the degree of prejudice, jury instructions are viewed in the light of the entire trial, including the allegations of the complaint, conflict in the evidence on critical issues and the arguments of counsel." State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 832 (Wyo.1994).

[17] The submission of, or the failure to submit, "a particular form of special verdict is vested in the sound discretion of the trial court." Turcq v. Shanahan, 950 P.2d 47, 53 (Wyo.1997); see also Addakai v. Witt, 2001 WY 85, ¶ 16, 31 P.3d 70, 73 (Wyo.2001); Webb v. ABF Freight System, Inc., 155 F.3d 1230, 1249 (10th Cir.1998), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253, 143 L.Ed.2d 350 (1999); and W.R.C.P. 49.

"[The core of our inquiry must reach 'the question of reasonableness of the choice made by the trial court" Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). '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' Id. (quoting Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236, 1238 (1985)); Basolo [v. Basolo ], 907 P.2d [348] at 353 [Wyo. 1995]. We must ask ourselves whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious."

Young v. HAC, LLC, 2001 WY 50, ¶ 6, 24 P.3d 1142, 1144 (Wyo.2001) (quoting Carlton v. Carlton, 997 P.2d 1028, 1031 (Wyo.2000)).

DISCUSSION

Jury Instrucrion IssuEs

[18] The appellant argues that the verdict form misled or confused the jury in that it foreclosed the jury from properly applying the law contained in other instructions to the evidence presented at trial. In particular, the appellant contends that by asking whether the ice at issue was from a natural accumulation of precipitation, the verdict form "only allowed the jury to choose between an accumulation of snow or water that was wholly natural or wholly unnatural" (rather than "a combination of natural and unnatural accumulation of snow or ice"), and did not allow the jury to consider whether "an unnatural accumulation had occurred, or whether a natural accumulation was aggravated or made more dangerous by something the [appellee] did, in this case have an improperly located down spout on her garage."

[T9] The district court instructed the jury as follows regarding natural and unnatural accumulations of precipitation:

INSTRUCTION NO. 8
In this case defendant owed the plaintiff a duty of reasonable care under the circumstances if the ice upon which the plaintiff slipped and fell was from an unnatural accumulation of water or snow. If the ice upon which the plaintiff fell was from a natural accumulation of water or snow, then defendant owed the plaintiff no duty [of] care under the law. A homeowner of property is not liable for injuries resulting from a slip and fall on a natural accumulation of snow or ice, and a homeowner has no legal duty to clear her sidewalk of naturally accumulated snow or ice.
To prove that an accumulation of ice or snow is unnatural, the plaintiff has the burden to show (1) that the defendant created or aggravated the hazard; (2) that the defendant knew or should have known of the hazard; and (3) that the hazardous condition was substantially more dangerous than it would have been in its natural state.
Whether the ice upon which the plaintiff slipped and fell was from an unnatural accumulation or whether it was from a natural accumulation of water or snow, the plaintiff had a duty to exercise ordinary care under the cireumstances in order to avoid injuring himself while on the defendant's property.[]

[T10] The parties each apparently submitted a proposed verdict form to the district court. The district court gave the jury a special verdict form based on the appellee's submission, which verdict form first asked the jury to determine the following:

1. Was the ice upon which the Plaintiff Albert Pauley fell from a natural accumulation of snow or water?
If you answered this Interrogatory yes, have the Presiding Juror sign this verdict form and return it to the Bailiff.

The appellant objected to this verdiet form at trial, and offered a verdiet form that instead asked the jury to determine the following:

1. Was the defendant, Deborah Newman, negligent?
If you have answered Yes to question no. 1, please answer question no. 2. If you have answered No to question no. 1, please have the presiding juror sign this verdict and notify the bailiff.

In the alternative, the appellant argued that a verdict form based on the appellee's submission should ask either whether the ice upon which the appellant fell was "entirely" from a natural accumulation of precipitation, or whether it was from an "unnatural" accumulation of precipitation.

[111] We cannot say that the district court abused its discretion in submitting a special verdict to the jury regarding the ap-pellee's duty of care. A key, disputed issue at trial was whether the appellant fell on a natural, or an unnatural, accumulation of precipitation. We have recognized that "in certain instances the question of duty hinges upon the determination of certain basic facts and, in those rare cireumstances, the question of the existence of a duty is properly placed before the trier of fact." Selby v. Conquistador Apartments, Ltd., 990 P.2d 491, 494 (Wyo.1999).

[112] We also cannot say that the form of the special verdict misled or confused the jury with respect to the applicable principles of law. The special verdict asked the jury to determine whether the ice upon which the appellant fell resulted from a natural accumulation of snow or water. Our standard of review requires that we consider the jury instructions as a whole, and not in isolation. Turcq, 950 P.2d at 51 (quoting L.U. Sheep Co., 790 P.2d at 672); Banks v. Crowner, 694 P.2d 101, 105 (Wyo.1985). It is apparent from reading the special verdict together with Instruction No. 8 that the jury was not precluded from considering whether the appellant's fall resulted from an unnatural accumulation of precipitation or the appellant's contentions regarding the role of precipitation from the appellee's garage downspout in creating or aggravating the hazard upon which the appellant fell. Both parties agree that Instruction No. 8 was a correct statement of the law to the extent it set forth the "natural accumulation" rule. See Selby, 990 P.2d at 494. The instruction clearly explained the relationship between natural and unnatural accumulations of precipitation vis-a-vis the appellee's legal duty of care, and stated what elements the appellant was required to prove in order to establish that the accumulation at issue was unnatural. Indeed, an unnatural accumulation, as defined in Instruction No. 8, necessarily encompassed whether the appellee created or aggravated the hazard and whether the hazardous condition was substantially more dangerous than it would have been in its natural state. See Selby, 990 P.2d at 495-96.

[113] We further note that the appellant's counsel referred to Instruction No. 8 during his closing argument, and specifically claimed that the ice upon which the appellant fell was due to an unnatural accumulation (the increased flow of water to that shaded area of the sidewalk from the appellee's garage downspout created or aggravated the hazard), the appellee knew or should have known of the hazard, and the hazardous condition was substantially more dangerous than it would have been in its natural state. The appellant's counsel also argued that the jury should answer "no" to the first question on the verdict form because after the natural precipitation had subsided, "there was still tons of water rolling off this roof and rolling right to [the spot where the appellant felll. There was no way that you could safely say that's a natural accumulation. That's unnatural. And that's why he fell."

[114] The district court exercised its discretion in establishing the particular form of the special verdict. The special verdict could just as easily have asked the jury to determine whether the appellant's fall resulted from an "unnatural" accumulation of precipitation. However, the " 'fact that an instruction may have been ... drafted in a way more favorable to a party does not warrant reversal for a new trial.' " Shrader, 882 P.2d at 832 (quoting Triton Coal Co., Inc. v. Mobil Coal Producing, Inc., 800 P.2d 505, 512 (Wyo.1990)). The appellant has not demonstrated that, considering the cireumstances of the instant case, he was prejudiced by the form of the special verdict.

[T15] The appellant similarly objected, at trial, to the following jury instruction given by the district court:

JURY INSTRUCTION NO. 5
This is a civil lawsuit arising out of an accident that occurred on January 9, 2000 here in Casper. On that date the plaintiff, Albert Pauley, was walking his dog around his neighborhood block. As the plaintiff walked upon the sidewalk adjacent to defendant Deborah Newman's garage, Mr. Pauley slipped on some ice and fell. Mr. Pauley has brought this lawsuit against Ms. Newman for the injuries he claims he received in that accident. Mr. Pauley contends that he slipped upon some ice that resulted from water draining from the plaintiff's garage, which water subsequently froze on the sidewalk. Mr. Pauley contends that Ms. Newman was negligent in permitting that condition to exist, and was negligent in not maintaining her sidewalk. Mr. Pauley contends that as a result of his slip and fall, he injured his shoulder, which has resulted in medical bills, disability, and loss of enjoyment of life.
The defendant Deborah Newman contends that the ice upon which Mr. Pauley slipped was the result of snow or mist that had fallen the night before on the sidewalk, and frozen. Ms. Newman denies that the icy condition on the sidewalk was created by her. Ms. Newman also denies that she was at fault, and contends that the icy condition was created overnight, with the accident then occurring the early morning of the following day. Ms. Newman also contends that Mr. Pauley himself was at fault for his accident in not being more careful walking in winter conditions.
These are only the contentions of the parties, and should not be considered by you to be evidence in the case.

On appeal, the appellant argues that this instruction is a misstatement of the law because the "instruction never mentions. the possibility of the combination of a natural and unnatural accumulation of ice or snow, or that the [appellee] may have aggravated a natural accumulation." i

[116] We note that Jury Instruction No. 5 merely summarized the parties' contentions. It did not purport to be a statement of the law, a statement of the evidence in the case, or an exhaustive account of the parties' contentions. We fail to see how the wording of this jury instruction conflicts with Instruction No. 8, which instruction the appellant concedes is a correct statement of the law with respect to natural and unnatural accumulations of precipitation, or how Jury Instruction No. 5 could conceivably have misled or confused the jury as to the applicable law. During his closing argument, the appellant was permitted full rein (within the legal framework established by Instruction No. 8) in arguing the role of precipitation from the appellee's garage downspout in creating or aggravating the hazard upon which the appellant slipped and fell. The appellant has not demonstrated that he was prejudiced by Jury Instruction No. 5. See generally Garnick v. Teton County School Dist. No. 1, 2002 WY 18, ¶ 28, 39 P.3d 1034, 1048 (Wyo.2002).

Morion For NEw TRIAL

[117] The appellant filed a motion for a new trial in August 2002, which motion the district court denied. In that motion, the appellant presented essentially the same arguments we addressed previously in this opinion. "Trial courts have broad discretion when ruling on a motion for new trial, and they will not be reversed absent an abuse of that discretion." Id., 2002 WY 18, T6, 89 P.3d at. 1038. We have concluded that the jury instructions at issue were not erroneous. Accordingly, we find that the district court's denial of the appellant's motion for a new trial was not an abuse of discretion.

[T 18] Finding no reversible error, we affirm.

      . The appellant admitted that he was "not sure about" whether the appellee in fact made this comment.

      . Jury Instruction No. 9 also stated that "If you find that the plaintiff owed a duty of care to defendant, that is that the ice upon which the [plaintiff] slipped and fell was from an unnatural accumulation of ice and snow, then this case must be determined on the basis of comparative fault of the parties."

      . W.R.C.P. 51(b) states:
      Further instructions; objections. -At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. Before the argument of the case to the jury has begun, the court shall give to the jury such instructions on the law as may be necessary and the same shall be 'in writing, numbered and signed by the judge, and shall be taken by the jury when it retires. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.

      . W.R.C.P. 49(a) states:
      (a) Special verdicts.-The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matier thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.

      . The appellant does not argue that the district court improperly instructed the jury as to the legal effect of its answer to the special verdict.

      . The appellant does not argue that he was, in effect, denied a "theory of the case" instruction.


text:
    2004 WY 77
    Gilbert Paul VERNIER, Appellant (Defendant), v. Agnes Marie VERNIER, Appellee (Plaintiff).
    No. 03-115.
    Supreme Court of Wyoming.
    June 29, 2004.

      Representing Appellant: Gilbert Paul Vernier, Pro Se.
    Representing Appellee: Dorothy A. Regis, Buffalo, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] The appellant, Gilbert Paul Vernier, was incarcerated in Colorado when his wife filed for divorcee. The divorcee was granted, and the appellant now claims that the district court erred in dividing the parties' property and in not allowing him the requisite thirty days to answer the complaint. We affirm.

ISSUES

[T2] The appellant presents two issues for our review:

1. Was the division of marital property equitable?
2. Were the Wyoming Rules of Civil Procedure violated?

FACTS

[T3] The appellee, Agnes Marie Vernier, filed a Verified Complaint for Divorce on March 28, 2008. When she filed the complaint, her husband, the appellant, was incarcerated at Crowley Correctional Facility in Olney Springs, Colorado. He was personally served there with a copy of the complaint and summons on March 31, 2003. The appel-lee filed an Application for Entry of Default on April 24, 2003, accompanied by supporting affidavits, and on May 7, 2008, after the appellant failed to plead or otherwise defend, the Clerk of the District Court entered a default. Despite the entry of default, the matter was heard on May 20, 2003, with the appellant appearing pro se by telephone. The district court ultimately granted the divorce and divided the parties' property and debts. The appellant filed a notice of appeal on June 9, 2003.

DISCUSSION

{{4] The appellant first claims that the district court's property division was inequitable. He contends that a "review of the record will convinced [sic] this Court that the trial judge did not carefully and conscientiously considered [sic] all of the factors that should have entered into the deliberations and subsequent decision pursuant to the division of property." (Emphasis in original.)

[T5] We note, at the outset, that the appellant failed to provide this Court a transcript of the proceeding pursuant to WRAP. 3.02, or a statement of the evidence as allowed by W.R.AP. 3.03. The appellant has the burden of providing this Court a complete record. Erhart v. Evans, 2001 WY 79, ¶ 18, 30 P.3d 542, 547 (Wyo.2001); Wood v. Wood, 865 P.2d 616, 617 (Wyo.1993). Without a sufficient record, we must " ' "accept the 'trial court's findings as being the only basis for deciding the issues which pertain to the evidence." "'" Smith v. Smith, 2003 WY 87, ¶ 11, 72 P.3d 1158, 1161 (Wyo.2003) (quoting Williams v. Dietz, 999 P.2d 642, 645 (Wyo.2000) and Weiss v. Pedersen, 933 P.2d 495, 498 (Wyo.1997), abrogated on other grounds by White v. Allen, 2003 WY 39, 65 P.3d 395 (Wyo.2003)). "In the absence of anything to refute them, we will sustain the trial court's findings, and we assume that the evidence presented was sufficient to support those findings." Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d 769, T7l-72 (Wyo.1995). Where a proper record is not provided, an appeal may be dismissed or review may be limited to those issues not requiring inspection of the record. Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo.1996).

[16] The division of marital property is within the sound discretion of the district court. Sweat v. Sweat, 2003 WY 82, ¶ 6, 72 P.3d 276, 278 (Wyo.2003). " 'Without either a transcript or an approved statement of the hearing we cannot assume that the court's findings were unsupported. We cannot find an abuse of discretion."" Stadtfeld, 920 P.2d at 664 (quoting Feaster v. Feaster, 721 P.2d 1095, 1097 (Wyo.1986)). According ly, we will affirm the property distribution set out in the divorce decree.

[17] The appellant next requests that we nullify the district court's order, arguing that "Wyoming Rules of Civil Procedures were violated by the [appellee] ...." While the appellant does not specify which rules were violated, he claims that the "[alp-pellee failed to wait the required 30 days before filing an Application For Entry of Default and Request for Setting." (Emphasis in original.) From this statement, we presume that the appellant is arguing that a default was entered, pursuant to W.R.C.P. 55, before the thirty-day time period allowed by W.R.C.P. 12(2).

[T8] The record clearly demonstrates that the appellant was allowed more than the required thirty days to respond, which he did not do. The appellant was served on March 31, 2003, and on May 7, 20083, thirty-seven days later, the clerk of the district court entered the appellant's default. Furthermore, the matter does not appear to have been treated as a default. A hearing was held in which the appellant participated. We find no procedural violation.

[19] As a final matter, the appel-lee requests that we "award her attorney's fees for the necessity of responding to Appellant's meritless appeal." Such a sanction, pursuant to W.R.A.P. 10.05, is not generally available where, as here, a discretionary ruling is challenged. Dorsett v. Moore, 2003 WY 7, ¶ 14, 61 P.3d 1221, 1225 (Wyo.2003). We acknowledge that we have departed from this rule in the past. See Barnes v. Barnes, 998 P.2d 942, 946 (Wyo.2000); Meyer v. Rodabaugh, 982 P.2d 1242, 1245 (Wyo.1999); and Stadtfeld, 920 P.2d at 664. However, we find that although the appellant failed to meet the burden of providing a sufficient record, he generally presented cogent argument and cited pertinent legal authority in support of his claims of error. Stonham v. Widiastuti, 2003 WY 157, ¶ 31, 79 P.3d 1188, 1198 (Wyo.2003) (quoting Amen, Inc. v. Barnard, 938 P.2d 855, 858 (Wyo.1997)); Phifer v. Phifer, 845 P.2d 384, 387 (Wyo.1993). We deny the appellee's request for attorney's fees.

[110] The district court's decision is affirmed.

      . WRAP. 3.02(b) provides:
      In all cases other than criminal and juvenile matters, if the proceedings in the trial court were stenographically reported by an official court reporter, appellant shall, contemporaneously with the filing of the notice of appeal, file and serve on appellee a description of the parts of the transcript which appellant intends to include in the record and unless the entire transcript is to be included, a statement of the issues appellant intends to present on appeal. If an appellant intends to assert on appeal that a finding or conclusion is unsupported by the evidence or contrary to the evidence, appellant 'shall include in the record a transcript of all evidence relevant to such finding or conclusion. If appellee deems a transcript of other parts of the proceedings to be necessary appel-lee shall, within 15 days after service of the designation of the partial transcript by appellant, order such parts from the reporter or procure an order from the trial court directing appellant to do so. At the time of ordering, a party must make arrangements satisfactory to the reporter for payment of the cost of the transcript.

      . W.R.A.P. 3.03 provides:
      If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, appellant may prepare a statement of the evidence or proceedings from the best available means including appellant's recollection. The statement shall be served on appellee, who may serve objections or propose amendments within 15 days after service. The statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the trial court in the record on appeal.

      . W.R.C.P. 55(a) provides:
      Entry.-When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.

      , W.R.C.P. 12(a) provides, in pertinent part:
      When Presented.-A defendant shall serve an answer within 20 days after the service of the summons and complaint upon that defendant, or if service be made without the state, or by publication, within 30 days after such service or within 30 days after the last day of publication ....
      (Emphasis added.)


author: GOLDEN, Justice.

text:
    2004 WY 79
    Alex Douglas BARCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 03-185.
    Supreme Court of Wyoming.
    June 30, 2004.

      Representing Appellant: John P. LaBuda and Stephen K. Palmer of Palmer & LaBuda, P.C., Rock Springs, Wyoming. Argument by Mr. Palmer.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General. Argument by Ms. Tibbetts.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] The sole issue presented by this appeal is whether reasonable suspicion existed to permit the continued detention of Appellant Alex Douglas Barch for a dog sniff of the exterior of his vehicle after state troopers had concluded a routine traffic stop. After issuing Barch a warning ticket for a missing front license plate and telling him that he was free to leave, state troopers conducted a dog sniff of the exterior of Barch's vehicle and discovered one and a half pounds of marijuana and one pound of psilocybin mushrooms. After his motion to suppress was denied, Barch entered a conditional guilty plea to one count of possession with intent to deliver a controlled substance.

[T2] We hold that the state troopers' continued detention of Barch was not based upon reasonable suspicion as required by the Fourth Amendment to the United States Constitution. The order denying the suppression motion is reversed, and this case is remanded to the district court, where Barch shall be allowed to withdraw his plea of guilty.

ISSUES

[T8] Barch presents this statement of the issue presented for review:

The continued detention of Appellant was not justified by reasonable and articulable suspicion of illegal activity and therefore violative of the Fourth Amendment of the Wyoming and United States Constitutions.

The State rephrases the issue as:

Did the District Court err in denying Appellant's motion to suppress?

FACTS

[T4] On December 7, 2002, Trooper Matthew Brackin executed a traffic stop of Barch's vehicle on I-80 for failure to display a front license plate. Upon approaching the vehicle, Trooper Brackin asked Barch for his driver's license, registration, and proof of insurance. While Barch was getting the requested information, Trooper Brackin asked Barch about his travel plans. Barch responded that he was on his way from Portland to Denver to visit some friends. Trooper Brackin asked Barch if his friends lived in Denver or a suburb and Barch replied that he was not sure and specified south Denver. The trooper also noticed that Barch appeared hurried. Barch retrieved the front plate from his trunk, and Trooper Brackin noticed several Rubbermaid containers in the trunk, some of which contained dried foods. Trooper Brackin returned to his patrol car to run a driver's license check and to prepare a warning ticket and noticed Trooper Tippy driving by and radioed him to come to the scene. Trooper Brackin returned Barch's driver's license, registration, and insurance card, issued the warning ticket, and told Barch that he was free to leave. Trooper Tippy arrived and parked behind Brackin's patrol car. As Barch approached his driver's door to leave, Trooper Brackin asked if he could ask a few more questions, and Barch consented. Trooper Brackin asked Barch additional questions regarding his trip, employment in Portland, the amount of cash he had and whether drugs were inside the vehicle. Trooper Brackin asked Barch for permission to search his vehicle, and Barch refused. Brackin then told Barch that he was going to have Trooper Tippy walk his drug dog around Barch's car and if the dog did not alert to anything in the car, they would let him go. At the suppression hearing, Trooper Brackin agreed that Barch had not consented to the search.

[T5] The drug dog alerted to the rear wheel area at first and, after being taken around again, alerted on the front license plate and the left side of the trunk area. Inside the Rubbermaid containers in the trunk, Trooper Brackin discovered about one and a half pounds of marijuana and a pound of psilocybin mushrooms. - Barch was arrested and filed a motion to suppress. Following a hearing, his motion to suppress was denied, Barch entered a conditional guilty plea, and this appeal followed.

DISCUSSION

Standard of Review

[T6] On appeal, findings on factual issues made by the district court considering a motion to suppress are not disturbed unless they are clearly erroneous. In conducting the hearing on the motion to suppress, the district court has the opportunity to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions; we will, therefore, view the evidence in the light most favorable to the district court's determination. Whether an unreasonable search or seizure has occurred in violation of constitutional rights presents a question of law which we review de novo. Damato v. State, 2003 WY 13, ¶ 7, 64 P.3d 700, ¶ 7 (Wyo.2003). Barch limits his analysis to the Fourth Amendment of the Federal Constitution. Without a state constitutional analysis, we decide a search and seizure issue solely under the Federal Constitution. Id. (citing Vasquez v. State, 990 P.2d 476, 485 (Wyo.1999)). The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV.

Reasonable Suspicion Analysis

[17] ° The touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. Reasonableness, of course, depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. Damato, ¶ 8 (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (per curiam) (quotation marks and citations omitted)); see also, Illinois v. McArthur, 531 U.S. 326, 331-32, 121 S.Ct. 946, 950, 148 L.Ed.2d 838 (2001). A traffic stop is a "seizure" within the meaning of the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief" Damato, ¶ 9; Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). However, a routine traffic stop is more analogous to an investigative detention than a custodial arrest and such stops are analyzed under the principles developed for investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Damato, ¶ 9.

The investigatory stop represents a seizure which invokes Fourth Amendment safeguards, but, by its less intrusive character, requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime.

Id; Wilson, 874 P.2d 215, 220 (Wyo.1994) (citing Lopez v. State, 643 P.2d 682, 683 (Wyo.1982)); see also Putnam v. State, 995 P.2d 632, 637 (Wyo.2000); and McChesney v. State, 988 P.2d 1071, 1074 (Wyo0.1999).

[18] We have a dual inquiry for evaluating the reasonableness of an investigatory stop: (1) whether the officer's actions were justified at the inception; and (2) whether it was reasonably related in seope to the circumstances that justified the interference in the first instance. Damato, ¶ 9; Wilson, 874 P.2d at 223 (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879); see also United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985). The conduct of an officer is judged by an objective standard which takes into account the totality of the cireumstances. Damato, ¶ 9; Putnam, 995 P.2d at 637; Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-81; United States v. Lang, 81 F.3d 955, 965 (10th Cir.1996); Martindale v. State, 2001 WY 52, ¶ 11, 24 P.3d 1138, ¶ 11 (Wyo.2001). In applying this test, the Court has "consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry." Damato, ¶ 9; Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996). "The government has the burden of demonstrating that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in seope and duration to satisfy the conditions of an investigative seizure." - Damato, ¶ 9 (quoting United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993)).

[19] Here, Barch does not dispute that the initial stop was valid, and the State concedes that Barch's detention after the completion of the traffic stop was not consensual and required reasonable suspicion of criminal activity. We, therefore, must examine the second prong of Terry, "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." 392 U.S. at 20, 88 S.Ct. at 1879. "In the course of making a routine traffic stop, a law enforcement officer may: request a driver's license and vehicle registration; run a computer check; and issue a citation." Damato, ¶ 13; Burgos-Seberos v. State, 969 P.2d 1131, 1133 (Wyo.1998) (citing United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997)); see also, Wilson, 874 P.2d at 224. Generally, the driver must be allowed to proceed without further delay once the officer determines that the driver has a valid license and is entitled to operate the vehicle. Damato, ¶ 13; Burgos-Seberos, 969 P.2d at 1133. "In the absence of the particular individual's valid consent, an officer may expand an investigative detention only if there exists an 'objectively reasonable and articulable suspicion' that 'criminal activity has occurred or is occurring." Damato, ¶ 13; United States v. Williams, 271 F.3d 1262, 1267 (10th Cir.2001), cert. demied, 535 U.S. 1019, 122 S.Ct. 1610, 152 L.Ed.2d 624 (2002) (citing United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998)). "[In justifying the particular intrusion the police officer must be able to point to specific and articula-ble facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Damato, ¶ 13 (citing Terry, 392 U.S. at 21, 88 S.Ct. at 1880). Damato determined that this Court will determine if the totality of the cireumstances demonstrates the existence of objectively reasonable suspicion of illegal activity. Damato, ¶ 16.

[110] The State contends that, under the totality of the cireumstances, the detention was justified by a reasonable suspicion of criminal activity and points to the following factors:

1. - Barch was unable to identify specifically his destination in the Denver area;
2. Barch was carrying a larger quantity of food than was necessary for his travel plans;
3. Barch was nervous and hurried;
4. Barch had been unemployed for two months making it unlikely he could afford a vacation;
5. Barch was from Portland, a known drug source area.

The State concedes that some of these factors are innocuous when considered in isolation, but contends that viewed in totality through the eyes of a reasonable law enforcement officer, they were sufficient to give rise to the necessary reasonable suspicion to justify a brief detention since the dog was present at the scene and the sniff took only a minute or two.

[111] In Damato, we determined that factors three and five are of little significance in raising reasonable suspicion because the average citizen is usually nervous when stopped by law enforcement for a routine traffic violation and because nearly all large areas can be called known drug hubs. Dam-ato, 14 23, 24. Without further facts to distinguish these factors in this situation, these factors must be deemed consistent with innocent conduct. Trooper Brackin testified that his suspicions were aroused because Barch could not specify the precise Denver suburb where his friends lived; however, cross-examination revealed that Trooper Brackin had onee flown into Denver's airport known as Stapleton and thought it was in south Denver without realizing that the airport was actually in Commerce City, Colorado. From this, Barch contends that it is not unusual to specify south Denver instead of the specific suburb and, without evidence of lying, misrepresentation or discrepancies, this lack of knowledge is consistent with innocent conduct and insufficiently suspicious. The State contends generally that contradictory, implausible or vague travel plans can give rise to a reasonable suspicion of eriminal activity but makes no argument that this specific statement is any or all of those factors. We agree that Barch established that specifying south Denver rather than a particular suburb is common to many travelers and not evidence of contradictory, implausible or vague travel plans that should give rise to a reasonable suspicion of criminal activity. In Dama-to, we considered the presence of food and said that factor described "a very large category of presumably innocent travelers and any suspicion associated with these items is virtually nonexistent." Damato, ¶ 25 (quoting United States v. Wood, 106 F.3d 942, 947 (10th Cir.1997)). Finally, Trooper Brackin found it suspicious that Barch could travel based on the trooper's belief that an unemployed person would not be able to afford to travel while unemployed. However, Trooper Brackin's belief is an unjustified assumption on his part and traveling while unemployed is innocent conduct that generally should not arouse suspicion. United States v. Guzman, 864 F.2d 1512, 1520 (1988), overruled on other grounds, 71 F.3d 783 (10th Cir.1995). Under our totality of the cireumstances test, however, individually innocent factors can, in combination, rise to create reasonable suspicion. Damato, 126. Here, Trooper Brackin stopped a young male traveling alone from a drug hub, Portland,, to an unknown suburh in south Denver for the claimed purpose of seeing friends although he had been unemployed for two months and possessed dried food in containers. When considered together, these factors do not provide reasonable suspicion for illegal conduct.

[1 12] We make this determination after a comparison with our decision in Meadows v. State, 2003 WY 37, 65 P.3d 33 (Wyo.2003). There, we held that the trooper had reasonable suspicion of criminal activity justifying continued detention of defendants after traffic citations were issued because there was a lack of identification of the vehicle and defendant who was driver of the car, there was no proof of insurance or registration on the car, defendant who was a passenger of the car supplied officers with false identification, defendants' actions were not consistent with their claims of traveling to Ohio for a funeral when their itineraries disagreed and were traveling without cash or an ATM card, and these facts combined with weighted trunk and defendant's abnormal nervousness gave rise to reasonable suspicion that they had committed or were committing a crime. Meadows, ¶¶ 20, 21. The degree of suspicion aroused by defendant's conduct in Meadows sufficient to permit a detention is lacking in this case and cannot justify Barch's continued detention once the traffic stop was concluded and Barch was free to leave the scene. The order denying the motion to suppress is reversed. The matter is remanded to district court for withdrawal of Barceh's guilty plea.


author: PARK, District Judge.

text:
    2004 WY 78
    GDK, Appellant (Respondent), v. STATE of Wyoming, DEPARTMENT OF FAMILY SERVICES; State of Wyoming, ex rel., DDK and MK, a/k/a MW, minor children, Appellees (Petitioners).
    No. C-03-10.
    Supreme Court of Wyoming.
    June 30, 2004.

      Representing Appellant: Matthew F.G. Castano of Brown & Hiser, LLC, Laramie, Wyoming.
    Representing Appellees: Cynthia L. Har-nett of Harnett Law Office, LLC, Casper, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and PARK, D.J.
   PARK, District Judge.

[T1] TAK, mother of the children in question, was married to GDK, appellant herein, at the time her children, DDK and MK, were born; however, she had a relationship with JMW and was living with him at the time of both births. Genetic testing established that JMW was the biological father of the children. Both GDK and JMW asserted paternity as to both children. The district court determined that JMW was the legal father of the minor children. GDK appeals from the decision on several grounds.

[12] We affirm.

ISSUES

1. Whether the district court correctly chose between two conflicting statutory presumptions and properly applied this presumption to determine that JMW was the father of DDK.
2. Whether the district court correctly applied the genetic testing presumption to determine that JMW 'was the father of MK.

FACTS

[13] TAK and GDK were married on December 31, 1998, and two children were born during this marriage: DDK born July 17, 2001, and MK (also known as MW) born May 8, 2002. During a period from prior to DDK's birth until shortly after MK's birth, TAK and JMW had a relationship and lived together in an on-again, off-again manner. TAK and JMW had a disagreement, and TAK moved out shortly after MK was born. Shortly thereafter, on June 4, 2002, TAK and GDK were divorced, but then remarried on November 2, 2002.

[14] The State of Wyoming filed a Petition to Establish Support on March 21, 2002, and then filed an Amended Petition to Establish Paternity and Support after the birth of MK. Both GDK and JMW responded to the amended pleadings and each sought a declaration that he was the father of both children. TAK, the mother, also responded, seeking a declaration of paternity and asking for custody of the children. The district court ordered genetic testing, and these tests resulted in a finding that there was a 99.9% probability that JMW was the father of both children.

[15] JMW's request to establish paternity was made within six months of the birth of MK but not within six months of DDK's birth. The statute in effect at the time had a time limit of six months within which a man could bring an action to establish paternity. Wyo. Stat. Ann. § 14-2-104(c) (LexisNexis 2001). JMW was time-barred as to DDK; however, he did bring his action to establish paternity in a timely manner for MK. Because of the statutory time limitations, the district court was required to do a separate analysis for each child. The determination of paternity for DDK. involved determination of conflicting statutory presumptions, and the determination of paternity for MK involved a statutory presumption on one hand and the impact of a positive genetic test on the other.

[16] Regarding DDK, the district court had to make a determination as between two different conflicting presumptions in the applicable statute. GDK claimed paternity under Wyo. Stat. Ann. § 14-2-102(a)(1) (Lexis-Nexis 2001), which provided that a man was presumed to be the natural father of a child if the child was born during the marriage. The claim of JMW rested on Wyo. Stat. Ann. § 14-2-102(a)(iv) (LexisNexis 2001), providing that a man was presumed to be the father of a child if he "receives the child into his home and openly holds out the child as his natural child." The district court held an evidentiary hearing and determined that JMW had received the child into his home and openly acknowledged DDK as his. The parties agreed that TAK and GDK were married at the time of DDK's birth,. Therefore, as to DDK, each man could assert a statutory presumption. The controlling statute, Wyo. Stat. Ann. § 14-2-102(b) (Lexis-Nexis 2001), provided that when there were two or more conflicting presumptions, the presumption based on the weightier considerations of policy and logic would control.

[17] As to DDK, the district court found that the "holding out" presumption took priority; and as to MK, the district court found that, in addition, there was no evidence to rebut the results of the genetic testing. Thus, for different reasons, the district court determined that JMW was the legal father of both children.

DISCUSSION

DDK Anauysis

[18] GDK argues that the district court improperly weighed the conflicting presumptions asserted by each of the men who claimed paternity. Resolution of this issue requires interpretation of the paternity statutes in effect at the time of the action. Therefore, the standard of review for statutory construction applies. The first consideration, when interpreting statutes, is to determine the legislature's intent. In re State, Div. of Child Support Enforcement, ex rel. NDB, 35 P.3d 1224, 1229 (Wyo.2001). When a court seeks to ascertain the meaning of a given law, all statutes must be construed in pari materia and all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Id. Sinee statutory construction is a question of law, our standard of review is de novo. Id. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. Id. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari mate-ria. Fontaine v. Board of County Commissioners of Park County, 4 P.3d 890, 895 (Wyo.2000).

[19] At the time of this action, Wyo. Stat. Ann. § 14-2-102 (LexisNexis 2001) set forth certain presumptions to be used by a court to determine paternity. This statute provided, in pertinent part:

(a) A man is presumed to be the natural father of a child if:
() He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within three hundred (800) days after the marriage is terminated by death, annulment or divorce 'or after a decree of separation is entered by the court.
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(iv) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.
(b) A presumption under subsection (a) of this section may be rebutted in an appropriate action only by clear and convine-ing evidence. If two (2) or more presumptions under subsection (a) of this section arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. A presumption under subsection (a) of this section is rebutted by a court decree establishing paternity of the child by another man or, after the court finds by clear and convincing evidence that the child was not born of the marriage, by a divorcee decree expressly declaring the child was not born of the marriage.

[T10] The first issue mandates a discussion of the evolution of a presentation necessary to overcome the enduring and strongly supported marital presumption. The marital presumption was derived from Roman civil law and adopted as part of English common law. Edward R. Armstrong, Putative Fathers and the Presumption of Legitimacy-Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L.Rev. 869, 373 (2003). This common law rule was in place to prevent the "bastardization" of children with the attendant lack of legal rights. Armstrong, supra. Furthermore, the courts wanted to provide families for children because such families "were desirable for such children and for the kingdom as a whole." Judge Chris W. Altenbernd, Quasi-marital Children: The Common Low's Failure in Privette and Damiel Calls for Statutory Reform, 26 Fla. St. U.L.Rev. 219, 234 (1999).

[T11] - Challenges to the marital presumption arose from many quarters, including the push to obtain child support from fathers in leu of public support. Theresa Glennon, Somebody's Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. Va. L.Rev. 547, 557-58 (2000). Part of this challenge also derived from the advances in science, including DNA testing. This testing provided substantially improved reliability in paternity determinations. Glennon, supra. Thus, courts have increasingly been required to make decisions as to whether the mother's husband or the biological father should be declared to be the legal father the child in question. This has generated discussions as to the proper role of the "best interests of the child" as a factor in resolving issues.

[112] The district court recognized this conflict and applied the statute to resolve which presumption should control. GDK argues that the court's finding is not proper because it improperly considered the children's best interest and the dissolution of the first marriage between TAK and GDK. The propriety of consideration of "best interest of the child" is the subject of many legal articles, a few of which have been previously cited, and of many court decisions.

[113] Minnesota has a similar statute, which provides that conflicts between statutory presumptions were to be resolved by applying the facts and making a determination as to which conflict was founded on weightier considerations' of policy and logic. In re Paternity of B.J.H., 573 NW 99, 102 (Minn.App.1998). The Minnesota Supreme Court was faced with a similar situation to that present in this case and, after applying the best-interest factors, determined the biological father, not the husband, to be the legal father. Id. at 104. The court noted that: Among other things, the respondent wanted a relationship with the child; he was willing and financially able to support the child; the child was accepted by the respondent's family; the respondent no longer wanted a relationship with wife; the child will want to know the identity of his biological father; and even though the child spent the majority of his life with husband, because of his young age he was still able to develop a relationship with the respondent. The court held that adjudicating the respondent to be the father of the child was consistent with the policy of not unnecessarily impairing blood relationships and was logically based on the facts. Id. at 108. The court held that a child's best interests are part of the analysis for resolving conflicting paternity presumptions and were consistent with a broad-based method of resolving conflicting paternity presumptions. Id. at 102.

[T14] The Colorado Supreme Court, faced with a similar problem, also came to the conclusion that the best interests of the child must be of paramount concern throughout a paternity proceeding and, therefore, must be explicitly considered as a part of the policy and logic analysis that is used to resolve competing presumptions of fatherhood. N.A.H. v. S.L.S., 9 P.3d 354, 357 (Colo.2000).

[115] Wyoming has traditionally followed the rule that the best interests of the children are generally not relevant in paternity cases. See Matter of Paternity of TS, 917 P.2d 183, 186 (Wyo.1996) (A best-interest analysis is not relevant in an inquiry which relates solely to establishing paternity); TL ex rel. TL v. CS, 975 P.2d 1065, 1068 (Wyo.1999) (best interest of the child not relevant in an action purely to establish paternity). However, we have recognized that there are some paternity proceedings where the best interests of the child are an issue. See NDB, 35 P.3d at 1228. The distinction between these cases has not been previously discussed, and perhaps the conflict has not been clearly explained. We now hold that in cases involving conflicting statutory presumptions, courts must consider the best interests of the child as one factor in determining paternity. To clarify, if the action involves solely a determination of paternity where there are no competing fathers, best interests of the child do not come into play; however, when the determination of paternity involves broader policy consideration, such as conflicting statutory presumptions, a best interest analysis is not only relevant but unavoidable.

[T16] Although the district court did not specifically use the term "best interest of the child," it is clear that the analysis was focused on this issue. The district court first noted that the six-month limitation under Wyo. Stat, Ann. § 14-2-104(c) (LexisNexis 2001) did not apply to those men alleging paternity under the "holding out" 'presumption; since JMW also alleged this cause of action, he had the right to assert paternity at any time pursuant to Wyo. Stat. Aun. § 14-2-104(b) (LexisNexis 2001). The court then held that there was substantial evidence to support a finding that JMW had taken both DDK and MK into his home and held them out as his natural children. GDK does not seriously contest this finding. We will follow the well-established rule that the finding of the trier of fact is to be accorded great deference, and we find that there is substantial evidence to support this finding. Schiesinger v. Woodcock, 35 P.3d 1232, 1288 (Wyo.2001). The court went to great lengths to point out that JMW was the biological father; that he had established a relationship with both children; and that he was willing to "undertake all responsibilities, financial included, associated with fatherhood." Specifically, the district court found that:

However, the tenuous proposition of legitimacy recognized in this family cannot, under the facts and cireumstances of this case, overcome the presumptions of paternity built on biological, physical and emotional evidence of a willingness to father this young [child].

[T17] The district court's analysis also discussed the fact that GDK and TAK were married at the time of the birth of the two children. The court did not elaborate on this except to point out that GDK and TAK divoreed after she left JMW and then remarried. It is clear that the district court determined that the best interest of the children favored the declaration of JMW as the father, and that this would have little impact on the family unit.

[T18] The court found that JMW would be the best father, and we will not second-guess this decision. GDK argues, however, that this decision has the effect of making the children illegitimate, and this is contrary to best policy and not in the best interest of the children. This Court does not believe that GDK's concerns about the impact on the children of an implied illegitimacy are well-founded. Scholars have noted that the rate of divorce, although dropping slightly since the 1980's, is still high; and it has been predicted that 65 percent of all new marriages will end in divoree. Glennon, supra ¶ 11, at 559. As a result of the divorce rate and the increasing propensity of divorced persons to have subsequent relationships without the benefit of marriage, nearly 40 percent of all minor children will experience the divorce of their parents, and by the time they reach majority, one-half will have spent some time in a single-parent household. Stephen J. Bahr, Social Science Research on Family Dissolution, presented at the conference "ALI Family Dissolution Principles: Blueprint to Strengthen or Deconstruct American Families?", J. Reuben Clark School of Law, Brigham Young University (February 1, 2001). Another study suggests that "[ellose to a majority of children growing up today are likely to spend some time living in a single-parent family before reaching adulthood." Frank Furstenberg, History and Current Status of Divorce in the United States, Children and Divorcee, Vol. 4, No. 1, at 80, 34 (1994). Our society is changing, and some believe that this cultural change is progressing rapidly. Among these changes are an increasing divorce rate, a decreasing rate of remarriage after divorce, and an increasing number of children born out of wedlock. Given all of these factors, there is substantially less adverse impact on children in single-parent homes and substantially less stigma for a child whose parents are not married. The district court's lack of concern about elevating the "marital" presumption reflects the impact of these cultural changes, and this Court can find no reason to disagree. The strong policy of legitimacy that attends the marital presumption as set out in LC v. TL, 870 P.2d 374, 380 (Wyo.1994), has diminished with the changes in societal values discussed herein.

[119] The Court agrees with the decision of the district court. There are two men, each seeking an adjudication of paternity, and the statutory presumptions asserted by each man must be resolved by considering the "weightier considerations of policy and logic." The use of the term "policy" by the legislature clearly implies that a court should consider the broader sociological and psychological ramifications of its decision as to which man should be adjudicated the legal father. It is inescapable that the best interests of the child must be considered in making a determination as to which of the competing presumptions controls. JMW is not a stranger to the children. He has developed a relationship with them; he has indicated his willingness to support them, both financially and emotionally; and he has demonstrated a commitment to the children. The district court did not err when it considered these factors and when it considered the best interests of the children in making its decision.

[120] Finally, the Court will also affirm the ruling as to the other child, MK, for the reasons set forth below. It is clearly in the interests of both children that since they have the same biological father, both the district court and this Court should recognize that reality and not adjudicate a different legal father for each child. The district court's ruling as to DDK is affirmed.

MK

[121] The discussion of the paternity of MK is not as complex. All of the reasoning of the district court that resulted in the court's determination that JMW was DDK's legal father also applies to MK. In addition, JMW made a timely request to establish paternity as to MK. A paternity test ordered by the district court also showed a 99.9% probability that JMW was MK's biological father. At the time of this action, Wyo. Stat. Ann. § 14-2-109(e)(iv) (LexisNexis 2001) set out that the results of the paternity test created a presumption that could be rebutted only by clear and convincing evidence. The district court noted that the genetic test was undisputed. The record supports this finding. GDK argues that the marriage presumption trumps and that these tests should not be used to overcome a "presumption of legitimacy." This argument runs counter to the express mandate of the legislature that such test results can only be overcome by clear and convincing evidence. The advances in technology with the attendant increase in the reliability and accuracy of genetic testing and the cultural and societal changes discussed previously indicate that biological ties are increasingly being recognized as having priority, in appropriate cases, even over the marital presumption.

[122] Acceptance of the argument advanced by GDK would have the law determine that one man is the legal father of the child even though blood tests-the reliability of which is not challenged-determine conclusively that another is the biological father. In his dissent in Commonwealth ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451, 455 (1957), Justice Chidsey aptly noted: "To hold that a 'presumption' establishes a fact 'in the eyes of the law' is not only to look upon justice as blindfolded, but to blind her by the law's own hand."

[123] If we were to hold that we should substitute a legal fiction (that GDK, as the husband, is presumed to be the legal father) over an established scientific fact, it would present problems for the child as well as for the biological father. The child has important rights, including the right to know and spend time with the father. Other rights include the child's interest in the father's lineal descent and the ramifications for medical treatment purposes; inheritance issues; and allaying the psychological stress of the uncertainty of parentage. Again, the Court must consider the best interests of the child.

CONCLUSION

[124] The district court was faced with a complex and deeply unsettling problem. There is no authority in Wyoming for dual paternity; therefore, the legal declaration of one man as the father could come only at the expense of the other. The court gave careful consideration to the evidence that was presented and to recognized societal norms. The district court's decision is supported by the record and by a thoughtful legal analysis. This Court agrees with the result reached. Rather than severing an existing parental relationship, the order finding JMW to be the children's biological father simply confirms and gives legal effect to a relationship known to. all the parties. Accordingly, the district court's order declaring JMW to be the biological father simply provides legal substance to a relationship that has existed throughout the children's lives. Under these facts, determining that JMW's parentage claims are weightier than GDK's does not impermissibly interfere with any rights GDK may have stemming from his marriage to TAK. We affirm the decision of the district court.