author: KAUTZ, Justice.

text:
    Colleen M. MEINERS, Appellant (Defendant), v. Alexandra MEINERS, as Personal Representative of the Estate of Theodore Meiners, Appellee (Plaintiff).
    S-18-0153
    Supreme Court of Wyoming.
    April 12, 2019
    Representing Appellant: Robert E. Schroth, Sr., Schroth & Schroth, LLC, Jackson, Wyoming.
    Representing Appellee: Matthew E. Turner, Geittmann Larson Swift LLP, Jackson, Wyoming.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   KAUTZ, Justice.

[¶1] The Appellant, Colleen M. Meiners, appeals the district court's order enforcing the terms of her divorce decree at the request of her late ex-husband, Theodore "Theo" Meiners' estate. Colleen argues the district court should have modified the terms of the divorce settlement agreement and the resulting divorce decree, failed to apply laches, and failed to award her storage fees and mortgage contributions. We affirm.

ISSUES

[¶2] Colleen raises the following issues in her appeal:

1. May parties to a Divorce Decree under certain circumstances modify the terms of their settlement agreement which was merged into the Divorce Decree?
2. Did the District Court err when it refused to follow the law as set forth by the Wyoming Supreme Court in Acton v. Acton [,] 2017 WY 151, 406[ ] P.3d 1279 (Wyo. 2017) ?
3. Can the Doctrine of Laches be asserted as a defense to the enforcement of a provision in the the [sic] property division in a Divorce Decree?
4. Did the District Court err by not giving [Colleen] credit for rental of storage space by Theodore Meiners?
5. Did the District Court err when it denied [Colleen] contribution from the Estate of Theodore Meiners for mortgage payments that were made by Appellant Colleen Meiners, from the date Appellant Colleen Meiners and Theodore Meiners became tenants in common?

FACTS

[¶3] This matter is before the Court for a third time. In Meiners v. Meiners , 2016 WY 74, 376 P.3d 493 (Wyo. 2016), we gave a thorough rendition of the facts, relevant portions of which are:

Theodore (Theo) Meiners and Colleen Meiners (collectively "the Meiners") married in 1989. They each had one child from prior relationships, and they had one child together who was born in 1989. In 2001, the Meiners separated, and in 2002 they executed a Child Custody and Property Settlement Agreement (Divorce Agreement). The Divorce Agreement gave Colleen Meiners primary custody of the couple's child and Theo Meiners reasonable visitation. Theo Meiners was to pay child support in the amount of $ 375.00 per month until the child reached the age of majority in April 2007. The agreement specified that Theo Meiners would be entitled to all his personal property being stored in the garage of the couple's residence and that he would remove that property by January 23, 2002. With respect to the couple's real property, which consisted only of their residence, the Divorce Agreement provided:
The parties['] real property located at 25 Aspen Drive will be sold to Wife under the following terms and conditions:
a. The purchase price shall be one half the fair market value as determined by an independent appraiser agreed to by the parties, which has been determined to be $ 285,000.00, less six percent (6%) sales commission, and less all outstanding taxes, mortgages and liens on the property;
b. Wife shall pay to Husband one half the net equity in the property as of August 30, 2001. Payment shall be due and payable when the property is sold or upon the emancipation of the parties' minor son, [AM].
c. There shall be no monthly payments, however the purchase price shall accrue interest at the rate of six percent (6%) simple interest per annum.
d. Wife shall receive as a credit toward the purchase price the sum of $ 2,460.00 which represents back child support owed by Husband as of August 30, 2001.
e. Husband shall execute all documents necessary to effect a transfer of title and ownership to Wife, as her sole and separate property, as may be required by any governmental entity, financial institution, or lender;
f. Wife shall execute all documents necessary to protect Husband's security interest in the real property located at 25 Aspen Drive.
After executing the Divorce Agreement, the Meiners had second thoughts about divorcing and did not file the Divorce Agreement in district court, though a divorce complaint had already been filed with the court. Between 2001 and 2007, Theo Meiners resided part of the year in Alaska, where he had a heli-skiing business, and part of the year in Jackson with Colleen Meiners. In 2007, the district court notified the Meiners that their divorce complaint would be dismissed for lack of prosecution if no action was taken on the matter, and the Meiners then decided to proceed with their divorce. On July 20, 2007, the Divorce Agreement was filed with the court, and on that same day, the district court entered a Decree of Divorce.
After the divorce decree was entered in 2007, the Meiners continued to have a good relationship and live as they had prior to their divorce, with Theo Meiners residing part of the year in Alaska and part of the year in Jackson with Colleen Meiners. In 2010, the Meiners refinanced the residence at 25 Aspen Drive, executing the necessary documents as husband and wife. Neither Theo Meiners nor Colleen Meiners followed the terms of the Divorce Agreement before or after their divorce.
On September 20, 2012, Theo Meiners died, and on November 7, 2012, his daughter, Alexandra Meiners, was appointed as personal representative of his estate. On October 7, 2013, Alexandra Meiners, on behalf of the estate, filed a complaint against Colleen Meiners alleging claims of breach of contract, unjust enrichment, enforcement of divorce decree, and slander of title. The breach of contract claim sought enforcement of the Divorce Agreement and in particular the agreement's real property division requiring Colleen Meiners to pay Theo Meiners one-half the net equity in the property located at 25 Aspen Drive, plus interest, based on the property's 2001 appraised value.
On November 7, 2013, Colleen Meiners filed an answer and counterclaim. She alleged numerous affirmative defenses, including laches and waiver, and asserted a counterclaim for breach of contract by which she sought damages for Theo Meiners' breach of the Divorce Agreement. Specifically, Colleen Meiners alleged that Theo Meiners breached the Divorce Agreement by: failing to remove his personal items from the property located at 25 Aspen Drive; failing to pay child support; failing to pay any portion of the mortgage on the property located at 25 Aspen Drive; and failing to pay his portion of the couple's debt.

Id ., ¶¶ 3-7, 376 P.3d at 494-95.

[¶4] The parties filed motions for summary judgment, and the district court granted summary judgment in favor of Alexandra on her slander of title claim, although it did not determine any damages she had suffered on that claim. Id ., ¶ 9, 376 P.3d at 495. The court also granted summary judgment to Alexandra on her claim to fifty percent of the equity in the real property less the deductions in the divorce decree but awarded less interest than requested. Id . The court denied Colleen's counterclaims to recover credit card payments, unclaimed child support, and laches, but granted judgment in her favor on her claims for mortgage contributions and costs of storing Theo's personal property. Id. Alexandra appealed the district court's order; however, we dismissed the appeal because it did not fully resolve the case, leaving unanswered questions about Alexandra's unjust enrichment claim and damages from the slander of title claim. Id ., ¶ 10, 376 P.3d at 496.

[¶5] The parties stipulated to an order dismissing without prejudice Alexandra's claims for unjust enrichment and slander of title and certifying the summary judgment order as final under Wyoming Rule of Civil Procedure 54(b). Alexandra again appealed the order, and we again determined the parties' claims were not yet fully and finally resolved. Id ., ¶ 12, 376 P.3d at 496. Specifically, the summary judgment order left it to the parties to determine the amount owed by the estate to Colleen for mortgage contributions and the amount owed by Colleen for Theo's half interest in the property. Id. , ¶ 18, 376 P.3d at 497. Although we dismissed the appeal, we did offer guidance for the district court on remand. We explained the threshold question that must be answered in this matter is whether the divorce agreement merged into the divorce decree or continued to exist as a separate enforceable agreement. Id ., ¶ 26, 376 P.3d at 499. We also recognized our well-established rule that:

when, in the absence of clear and convincing evidence to the contrary, the parties enter into a settlement agreement in contemplation of divorce and the district court's divorce decree incorporates or adopts by reference that agreement, the agreement is presumed to merge into the decree and will no longer be given effect. Our decision does not affect a trial court's authority to revise a divorce decree concerning the care, custody, or maintenance of children or alimony, nor does our decision affect a trial court's lack of authority to modify a divorce decree concerning property division.

Id ., ¶ 25, 376 P.3d at 498-99 (quoting Pauling v. Pauling , 837 P.2d 1073, 1078 (Wyo. 1992) ).

[¶6] On remand, the district court held a bench trial where it received testimony from Colleen, Alexandra, and Colleen and Theo's son, Aidan. Before the trial began, the parties agreed the divorce agreement had merged with the divorce decree, leaving for determination at trial the amount Colleen owed the estate under the decree, whether the doctrine of laches applied to enforcement of the decree, and whether the estate was responsible for mortgage payments and storage fees. After receiving the evidence, the district court ordered post-trial briefing and closing arguments at a later date. Before closing arguments took place, this Court published its opinion in Acton v. Acton , 2017 WY 151, 406 P.3d 1279 (Wyo. 2017). In Acton , we acknowledged the general rule regarding divorce agreements merging with divorce decrees, but also stated:

However, this Court has long recognized that even a contract with an integration clause, for instance a divorce agreement, may be modified through oral agreement or by mutual conduct of the parties if certain conditions are met. See Big-D Signature Corp. v. Sterrett Props ., LLC , 2012 WY 138, ¶ 33, 288 P.3d 72, 80 [ (Wyo. 2012) ]. The conditions that must be met to orally modify an integrated agreement are: "First, there must be evidence that the parties orally modified the contract terms, and second, the parties have taken actions consistent with the new terms." Big-D , ¶ 33, 288 P.3d at 81.

Acton , ¶ 9, 406 P.3d at 1281.

[¶7] Colleen relied on Acton in her closing argument. The district court acknowledged Acton but believed it conflicted with this Court's long-standing precedent and the admonition contained in the remand. The court concluded that, because the divorce agreement merged with the divorce decree, the parties could no longer avail themselves of contract remedies. Further, Wyoming Rule of Civil Procedure 60(b) did not afford Colleen relief from the divorce decree. Based on the terms of the divorce agreement and decree, Colleen was obligated to pay the estate $ 125,055.35 for Theo's share of the real property. The court determined the doctrine of laches is an equitable remedy that cannot be applied when the action is to enforce a legal judgment such as a divorce decree. The court also found the divorce agreement was silent regarding mortgage contributions from Theo and, therefore, the court could not require those contributions when enforcing the decree. Finally, the court determined Colleen was not entitled to storage fees. As with the mortgage contributions, the divorce agreement did not contemplate storage fees. The court further concluded that even if awarding storage fees would be appropriate as a means of enforcing the divorce decree, Colleen did not provide an adequate evidentiary basis of an appropriate storage rate. Colleen filed a timely notice of appeal.

STANDARD OF REVIEW

[¶8] We use the following standard of review when reviewing a district court's decision following a bench trial:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail re-weighing disputed evidence. Findings of fact will not be set aside unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In considering a trial court's factual findings, we assume that the evidence of the prevailing party below is true and give that party every reasonable inference that can fairly and reasonably be drawn from it. We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law. The district court's conclusions of law are reviewed de novo .

Galiher v. Johnson , 2018 WY 145, ¶ 6, 432 P.3d 502, 507 (Wyo. 2018) (quoting Graybill v. Lampman , 2014 WY 100, ¶ 25, 332 P.3d 511, 519 (Wyo. 2014) ).

[¶9] We review a district court's decision to deny a motion brought under W.R.C.P. 60(b) for an abuse of discretion. Barnes v. Barnes , 998 P.2d 942, 944 (Wyo. 2000).

A court abuses its discretion when it acts in a manner which exceeds the bounds of reason under the circumstances. The party who is attacking the trial court's ruling has the burden to establish an abuse of discretion, and the ultimate issue is whether the court could reasonably conclude as it did.

McBride-Kramer v. Kramer , 2019 WY 10, ¶ 11, 433 P.3d 529, 532 (Wyo. 2019) (quoting Three Way, Inc. v. Burton Enters., Inc. , 2008 WY 18, ¶ 16, 177 P.3d 219, 225 (Wyo. 2008) ).

DISCUSSION

Modification of Divorce Decree

[¶10] Colleen argues that, even though the parties stipulated the divorce agreement merged with the divorce decree, the district court should have found Colleen and Theo orally modified the terms of the agreement and the decree based on this Court's decision in Acton . Colleen submits the evidence at trial shows that she and Theo agreed that Theo would not require Colleen to pay him for his equity in the home and the two acted in conformity with that agreement. She maintains she would have proceeded differently had she known she would be responsible for the payment; specifically, she would have refinanced the house and paid Theo his share in 2007 when the house had an increased value instead of waiting until now and owing the estate interest.

[¶11] The district court did not apply Acton for two reasons. First, this Court specifically instructed the district court to apply the general rule that it is presumed a divorce agreement merges in the divorce decree and that courts do not retain jurisdiction to modify property distributions. The parties stipulated that the divorce agreement merged with the decree. Second, the district court surmised the decision in Acton "appears to be an erroneous statement of the law." The court recognized that the holding in Acton seemed to conflict with this Court's mandate, would constitute a "sea change" in the area of family law in Wyoming, and may alter the outcome of this case.

[¶12] The facts from Acton can be distinguished to some extent from the facts here. While in both cases the parties' divorce agreement was incorporated into the divorce decree, the subsequent oral agreement in Acton did not modify who received what property, but instead simply extended the amount of time the husband had to remove his property from the former marital home. Acton , ¶ 5, 406 P.3d at 1280. Although this factual distinction could be considered significant, both cases implicate the general rule of finality in the property distribution terms of divorce decrees. In that respect, the two cases should be treated similarly. This Court has long recognized the importance of finality in a divorce judgment. Harshfield v. Harshfield , 842 P.2d 535, 538 (Wyo. 1992). "Especially is this true in divorce cases when the emotional involvement of the parties tends to magnify the importance of all matters in connection therewith." Id . For this reason, res judicata bars modifying a divorce decree except under particular circumstances involving child custody, child support, and alimony. Id . A district court, however, does not retain jurisdiction to modify marital property divisions. Id .

[¶13] A requirement in a divorce decree is an order of the court, regardless of its significance. If parties were permitted to orally modify the terms of a court order, divorce decrees would lose their intended force and effect, parties would have incentive to try to avoid compliance, re-litigation of decided issues could be the norm, and parties would never see the end of domestic property disputes. The reasoning in Acton does not further the essential concept of finality in marital dissolution property disputes long required by our precedent. We also, however, recognize the important principles of stare decisis to further the "evenhanded, predictable, and consistent development of legal principles, foster[ ] reliance on judicial decisions, and contribute[ ] to the actual and perceived integrity of the judicial process." Brown v. City of Casper , 2011 WY 35, ¶ 43, 248 P.3d 1136, 1147 (Wyo. 2011) (quoting State ex rel. Wyo. Workers' Comp. Div. v. Barker , 978 P.2d 1156, 1161 (Wyo. 1999) ). For that reason, this Court uses caution when overruling prior case law. Id . But,

we should be willing to depart from precedent when it is necessary to vindicate plain, obvious principles of law and remedy continued injustice. When precedential decisions are no longer workable, or are poorly reasoned, we should not feel compelled to follow precedent. Stare decisis is a policy doctrine and should not require automatic conformance to past decisions.

Id . (internal citations and quotation marks omitted).

[¶14] Although Acton was decided a relatively short time ago, the poorly reasoned and unworkable nature of the opinion is clear. The opinion "recognized" the "established principle that the parties to a divorce may not modify a divorce decree without submitting those modifications to the district court for its consideration and approval," but then relied on a case involving the breach of a home construction contract to conclude the parties subject to a divorce decree can orally modify the conditions in the decree. Acton , ¶ 9, 406 P.3d at 1281. In doing so, Acton did not theoretically overrule any prior precedent, but modified the well-established principle to the point it no longer has any meaning. Ironically, the Acton opinion did not take into account the doctrine of stare decisis and the state of our precedent before announcing a new rule of law that would substantially impact divorce agreements and decrees in the future.

[¶15] To allow parties to a divorce decree to orally modify the terms of the divorce agreement that have merged into the decree-a court order-is unworkable. It will be impossible for one party to enforce the order against the other party if there are any future disputes, as the district court will have to conduct a mini-trial to determine whether any of the provisions were modified. The whole purpose of a court order is to have something that can be enforced against a person who is not complying with the court's decision. To allow individuals to modify orders without court intervention would defeat the very purpose of a court order. Therefore, we overrule our decision in Acton and reaffirm the principle that we presume a divorce agreement merges into the divorce decree, and the agreement will no longer be given effect. Zupan v. Zupan , 2010 WY 59, ¶ 10, 230 P.3d 329, 332 (Wyo. 2010) ; Pauling , 837 P.2d at 1078. Further, a district court does not retain jurisdiction to modify marital property divisions based upon a change of circumstances and, instead, is limited to vacating judgments for fraud, mistake, inadvertence, or irregularity under W.R.C.P. 60(b). Harshfield , 842 P.2d at 538-39. On the basis of these well-established and reasoned principles, the district court did not err when it followed this Court's guidance in the remand instead of applying Acton . The parties agreed the divorce agreement merged with the divorce decree; therefore, the district court could not modify the agreement absent vacating the judgment under Rule 60(b).

Relief under W.R.C.P. 60(b)

[¶16] Colleen argues that the district court should have given her relief from the terms of the divorce decree under W.R.C.P. 60(b). That Rule states:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding . - On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Colleen specifically relies on subsections (5) and (6). Her argument relies exclusively on her assertion that Theo wanted Colleen to keep the house without having to pay him for his portion of the house in accord with the divorce decree. She claims it would be "extremely unfair and create a hardship the parties never intended" if the terms of the divorce decree are enforced.

[¶17] Rule 60(c) requires that "[a] motion made under Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." See also, Linch v. Linch , 2015 WY 141, ¶ 16, 361 P.3d 308, 313 (Wyo. 2015) (time limitations in Rule 60(c) do not apply to motions brought under Rule 60(b)(4) (void orders) ). Colleen seeks relief under Rule 60(b)(5) and (6) ; therefore, the motion must be filed within a reasonable time. This Court has not had the occasion to discuss the parameters of a "reasonable time" as explained in the rule. The Wyoming rule, however, is identical to the federal Rule 60 and it is appropriate to look to the federal courts for guidance. Leach v. State , 2013 WY 139, ¶ 30, 312 P.3d 795, 801 (Wyo. 2013).

"There is no hard and fast rule as to how much time is reasonable for the filing of a Rule 60(b)(6) motion; courts have found periods of as little as a few months unreasonable, and have found periods of as long as three years reasonable." Sudeikis v. Chicago Transit Authority , 774 F.2d 766, 769 (7th Cir. 1985). "What constitutes 'reasonable time' depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and [the consideration of] prejudice [if any] to other parties." Ashford v. Steuart , 657 F.2d 1053, 1055 (9th Cir. 1981).

Kagan v. Caterpillar Tractor Co. , 795 F.2d 601, 610 (7th Cir. 1986) (brackets in original).

[¶18] The divorce decree was entered in 2007 and Colleen did not request relief under Rule 60(b) until 2017-ten years after the court entered the decree and four years after Alexandra filed suit against Colleen. Colleen has not provided this Court with an explanation of why she waited ten years to obtain relief from the divorce decree. It appears Colleen and Theo did not abide by the terms of the decree from the time it was entered, thus the grounds Colleen relies upon have existed for the entire ten years. She opted not to take any action to be relieved from the order in the divorce case until a few days before trial in this case. We find, under these circumstances, a ten-year delay is not a reasonable time to bring a motion for relief under Rule 60(b)(5) or (6). See Barnes , 998 P.2d at 945-46 (a sixteen-month delay between judgment and motion under Rule 60(b)(6) was not reasonable); Sorbo v. United Parcel Serv ., 432 F.3d 1169, 1178 (10th Cir. 2005) (one year between judgment and Rule 60(b) motion was not a reasonable time); United States v. Morales-Morales , 222 Fed.Appx. 796, 796-97 (10th Cir. 2007) (one and a half years between judgment and Rule 60(b) motion was not a reasonable time). The district court did not abuse its discretion in denying Colleen's request for relief from the divorce decree under Rule 60(b).

Laches

[¶19] The district court found, and the parties seem to agree, that Wyoming law does not permit a party to use laches to prevent the other party from asserting a legal right, such as enforcing an award in a divorce decree. See Hammond v. Hammond , 14 P.3d 199, 202 (Wyo. 2000) (defense of laches is not available in child support collection actions because suits for monetary judgements for child support arrearages are legal rather than equitable). However, the district court referred to an unpublished Colorado Court of Appeals case that allowed the use of laches when a wife attempted to collect spousal support that was ordered in a divorce decree twenty-six years after the decree had been entered. See In Re the Marriage of Kann and Kann , No. 16CA0259, --- P.3d ----, 2017 WL 2981861 (Colo. Ct. App. July 13, 2017). The district court suggested that if Wyoming adopted the approach taken in Kann and allowed laches in these situations, the equities would favor Colleen. Relying on Kann , Colleen argues this Court should recognize laches as a defense against enforcing the divorce decree.

[¶20] In Hammond, we explicitly rejected the use of laches in preventing a mother from collecting child support thirteen years after the father's support obligation ended. We explained that a monetary judgment for child support arrearages is a legal claim, subject to a statute of limitations, and the equitable remedy of laches is unnecessary. Hammond , 14 P.3d at 202. The same is true of the divorce decree here. The estate's enforcement of the property provision of the decree is a legal claim that is subject to a statute of limitations, thus application of laches is unnecessary.

[¶21] We have considered the Colorado appellate court's Kann opinion. It certainly reaches a different result from Hammond and has thoughtful reasons for doing so. We do not believe the present case provides the appropriate means to determine whether we should depart from Hammond . Colleen submits that "numerous" states apply laches in situations similar to the one here, but only cites to Kann . Further, while she explains the Kann decision, she does not provide us with any analysis or reasoning as to why the Kann conclusion is sounder than Wyoming's current approach (which, according to Kann, is shared by about half of the states). See Kann , --- P.3d ----, 2017 WL 2981861, ¶ 31. Without a cogent analysis explaining these points, this Court declines to abandon its clearly established law. See Tozzi v. Moffett , 2018 WY 133, ¶ 26, 430 P.3d 754, 762 (Wyo. 2018) (This Court may decline to consider claims not supported by cogent argument.).

[¶22] Colleen also argues the doctrines of waiver and detrimental reliance should prevent Alexandra from seeking enforcement of the terms of the divorce decree. Colleen provides no citation to authority to support the use of these theories as a defense to enforcement of the divorce decree. Instead, it appears her argument is solely that Theo's behavior modified the terms of the divorce agreement. As we explained above, a divorce agreement ceases to be an independent agreement when it is merged into a divorce decree and, therefore, cannot be modified simply by the behavior of the parties. Zupan , ¶ 10, 230 P.3d at 332.

Storage Fees

[¶23] The divorce agreement and decree stated that Theo was to remove his property from the family home at his expense by January 23, 2002. At the time the district court issued the order that is the subject of this appeal, Theo's belongings were still at the home. The district court denied Colleen's request for storage fees on two bases. First, it determined that, to the extent it could treat the divorce agreement as an independent contract before it merged into the divorce decree, the agreement did not include a provision for storage fees. The court then considered whether it could award storage fees as part of enforcing the divorce decree since Theo's belongings have been in the home long after the court ordered the items be removed via the divorce decree. The court concluded that Colleen failed to provide persuasive evidence regarding an appropriate storage fee, and that Colleen's testimony demonstrated that she gave Theo permission to continue storing his property at the home.

[¶24] On appeal, Colleen appears to argue she is only entitled to storage fees from May 10, 2002 (the date the parties signed the divorce agreement) until July 20, 2007 (the date the court entered the divorce decree). She does not address the district court's order regarding storage fees at all, and her argument does not clearly state on what theory she believes she is entitled to storage fees. Her argument suggests she is entitled to storage fees under contract principles, apparently believing the divorce agreement can stand as an independent contract until it is merged into the divorce decree. Colleen, however, has not provided a single citation to any authority that supports her assertion that "equity dictates" that Theo should have to pay storage fees. Because she has failed to provide cogent argument with citation to pertinent authority, we decline to consider this issue. Tozzi , ¶ 26, 430 P.3d at 762.

Mortgage Payments

[¶25] Colleen argues Theo's estate should have to pay for fifty percent of the mortgage payments since the court entered the divorce decree because he was still a part-owner of the house as a tenant in common. She relies on Hofstad v. Christie , 2010 WY 134, 240 P.3d 816 (Wyo. 2010) and a case from the Oregon Supreme Court, Beal v. Beal , 282 Or. 115, 577 P.2d 507 (1978), to support her position. These cases, however, considered actions between unmarried couples who owned property as tenants in common and have no applicability to the situation presented here.

[¶26] In Hofstad , the parties were unmarried but lived as a family with their children for extended periods of time over ten years. Hofstad , ¶ 3, 240 P.3d at 817. Mr. Hofstad purchased a new home and he and Ms. Christie were both listed on the warranty deed. Id ., ¶ 4, 240 P.3d at 818. When the relationship ended, Ms. Christie sought partition of the home. Id ., ¶ 6, 240 P.3d at 818. Although Mr. Hofstad made the majority of the financial contribution to the home, the district court considered the familial relationship of the parties and Mr. Hofstad's donative intent in deciding to give each party an equal interest in the home. Id ., ¶¶ 10-17, 240 P.3d at 819-21. After considering these factors, we affirmed the district court's decision to partition the property equally. Id ., ¶ 18, 240 P.3d at 822.

[¶27] In Beal , the parties had divorced and thereafter purchased property together as "husband and wife." Beal , 577 P.2d at 508. Two years later, Ms. Beal moved out of the home. Id . The Oregon Supreme Court established a special rule for couples who had lived together in a nonmarital domestic relationship, requiring the courts to distribute the property based upon the express or implied intent of the parties. Id . at 510. The court determined the Beals intended they be treated as equal co-tenants and awarded each party an equal interest in the property. Id. However, the court also ordered that Ms. Beal, as a co-tenant, was responsible for half of the mortgage payments on the home after she moved out. Id .

[¶28] Unlike the circumstances found in Beal and Hofstad , Colleen does not need a court to determine what interest she has in the real estate because the district court already considered the equities of her situation when it entered the divorce decree awarding her the property. To find that Theo was a tenant in common and was required to contribute fifty percent of the mortgage payments would be contrary to the established rule discussed above that prohibits parties from orally modifying the terms of a divorce decree absent judicial intervention. The divorce agreement and decree did not provide that Theo was responsible for any of the mortgage payments, therefore, the district court properly declined Colleen's request for mortgage contributions from the estate.

CONCLUSION

[¶29] The district court correctly determined that a divorce agreement that has merged into a divorce decree cannot be modified by oral agreement of the parties, and we overrule our decision in Acton v. Acton , 2017 WY 151, 406 P.3d 1279 (Wyo. 2017) that states otherwise. Colleen failed to demonstrate she was entitled to relief from the decree under W.R.C.P. 60(b), and she cannot use the doctrine of laches to prevent enforcement of the judgment. The district court properly concluded Colleen was not entitled to storage fees or mortgage contributions.

[¶30] Affirmed.

      The Appellee, Alexandra Meiners, is the personal representative of Theo's estate. Everyone involved in this litigation shares the same surname; therefore, to avoid confusion the members of the Meiners family will be referred to by their first names.

      The decree "approved and incorporated in full" the terms of the agreement and ordered the parties to "comply in full with the provision(s) of said Agreement."

      Although not addressed by either party, it is important to point out that this Court has at times applied laches to prevent a party from asserting a "legal right." In Windsor Energy Group, L.L.C. v. Noble Energy, Inc. , 2014 WY 96, 330 P.3d 285 (Wyo. 2014), we determined the unique circumstances of that case (an oil and gas agreement) justified the application of laches to a breach of contract claim when the statute of limitations had not yet run. We explained that if the existence of a statute of limitations was a barrier to the use of laches, laches would be abolished because all actions in Wyoming are governed by a statute of limitation. Id ., ¶ 22, 330 P.3d at 291.
      We, however, distinguished the oil and gas agreement at play in Windsor from the child support order in Hammond . We pointed out that a child support order is a judgment as soon as it is due, and the limitation period applicable to uncollected judgments applies. Id ., ¶ 21, 330 P.3d at 291. We also explained that even in breach of contract cases covered by an applicable statute of limitations, the use of laches should be "very limited in scope." Id ., ¶ 22, 330 P.3d at 291. Thus, although it may be limited in scope, this Court has allowed the use of laches when parties are trying to assert a "legal right." See also, Mullinnix LLC v. HKB Royalty Trust , 2006 WY 14, ¶ 32, 126 P.3d 909, 923 (Wyo. 2006) ("Laches is a form of equitable estoppel which operates when a party has unreasonably delayed in asserting a legal right.").

      Colleen also asserts in her brief that she should be compensated for half of the homeowners' association fees and maintenance costs on the home. The district court did not address these expenses in its order, and Colleen did not assert she was entitled to them in her counterclaims. "Our precedent is clear that an argument may not be made for the first time on appeal" and we decline to consider Colleen's request for these costs. Reichert v. Daugherty , 2018 WY 103, ¶ 23, 425 P.3d 990, 998 (Wyo. 2018).


source: Caselaw Access Project

author: HOWE, Judge:

license: Public Domain

text:
    Jesus APODACA, Sr., et al., Plaintiffs/Appellees, v. Jo Ann Agnes KEELING, Defendant/Appellant.
    No. 1 CA-CV 18-0416
    Court of Appeals of Arizona, Division 1.
    FILED March 19, 2019
    Phillips Law Group PC, Phoenix, By Timothy G. Tonkin, Montana Thompson, Counsel for Plaintiffs/Appellees
    Law Offices of Kathryn Leonard, Phoenix, By Joel A. Buckley, Counsel for Defendant/Appellant
    Judge Randall M. Howe delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.
   HOWE, Judge:

¶1 Jo Ann Keeling appeals the superior court's judgment awarding attorneys' fees, expert witness fees, and taxable costs to plaintiffs Jesus Apodaca, Sr. and Christina Flores De Apodaca under Arizona Rule of Civil Procedure ("Rule") 77(h). Keeling contends that, in determining whether the rule mandated such award, the court erred by comparing each plaintiff's monetary share of the judgment to their respective share of a prior compulsory arbitration award. We affirm the superior court's judgment but strike its imposition of Rule 77(h) sanctions against Keeling because the method used to determine whether such sanctions were appropriate was inconsistent with the rule's plain language.

FACTS AND PROCEDURAL HISTORY

¶2 The Apodaca family-Jesus Apodaca, Sr.; Christina Flores De Apodaca; Jesus Apodaca, Jr.; and Maria Jose Apodaca Flores -suffered injuries when Keeling rear-ended their car, and they jointly sued Keeling in a tort action. After a compulsory arbitration hearing, an arbitrator awarded damages of $33,198.90 to Jesus, Sr.; $27,439.50 to Christina; $19,478.00 to Jesus, Jr.; and $16,492.00 to Maria. The arbitrator also awarded $510.78 in taxable costs, for a total arbitration award of $97,119.18.

¶3 Keeling appealed the arbitration award to the superior court under Rule 77(a), and in the ensuing trial de novo admitted liability but contested damages. The jury awarded $27,739.00 to Jesus Sr.; $19,939.00 to Christina; $10,418.00 to Jesus, Jr.; and $7,392.00 to Maria. The superior court awarded the Apodacas, as the prevailing parties, their taxable costs of $7,529.73, bringing their total award to $73,017.73.

¶4 The Apodacas subsequently moved for sanctions under Rule 77(h), asserting that Keeling's appeal did not result in "a verdict 23% more favorable than the arbitration awards with regards to [Jesus, Sr.] and [Christina]." Keeling promptly objected, arguing that Rule 77(h) sanctions are not determined by comparing the amounts awarded to each individual, but by comparing the arbitration award to the trial judgment. Because the trial judgment was 23% more favorable to Keeling than the arbitration award, she maintained that sanctions were inappropriate.

¶5 Applying the Apodacas' proposed party-by-party analysis, the superior court found that Keeling did not meet Rule 77(h) 's 23% threshold to avoid sanctions as to Christina and Jesus, Sr. In reaching that determination, the court compared the jury verdict for Jesus, Sr. (plus costs)-$29,638.35-to his arbitration award (plus costs)-$33,326.59. The court performed the same computation for Christina-comparing her award on appeal (plus costs)-$21,824.00-to her arbitration award (plus costs)-$27,567.19. The court then entered a final judgment, which included the Apodacas' damages, taxable costs, and an award of $30,593.25 in Rule 77(h) sanctions in favor of Jesus, Sr. and Christina. The Rule 77(h) sanctions were comprised of expert witness fees, attorneys' fees, and taxable costs for the trial. Keeling timely appealed.

DISCUSSION

¶6 Keeling challenges the superior court's award of Rule 77(h) sanctions. She contends that the court erred by separating the arbitration award and judgment "into individual awards and judgments and bifurcating the Rule [77(h) ] comparison." We review a court's interpretation and application of Rule 77 de novo. Bradshaw v. Jasso-Barajas , 231 Ariz. 197, 199 ¶ 5, 291 P.3d 991, 993 (App. 2013). In construing and interpreting a rule, our goal is to effectuate the intent of the drafters, and we look to the rule's plain language as the best indicator of that intent. Alejandro v. Harrison , 223 Ariz. 21, 22-23 ¶ 8, 219 P.3d 231, 232-33 (App. 2009). When the rule is clear and unambiguous, we apply it as written without further analysis. Poulson v. Ofack , 220 Ariz. 294, 297 ¶ 8, 205 P.3d 1141, 1144 (App. 2009).

¶7 Any party who appears and participates in a compulsory arbitration may appeal the arbitration award to the superior court. Rule 77(a). Following such appeal, the trial court must conduct an "apples to apples" comparison of the arbitration award to the judgment entered after a trial de novo. Bradshaw , 231 Ariz. at 200 ¶ 9, 291 P.3d at 994 (quoting Hales v. Humana of Ariz., Inc. , 186 Ariz. 375, 378, 923 P.2d 841, 844 (App. 1996) ). "If the judgment on the trial de novo is not at least 23 percent more favorable than ... the arbitration award," the court must award the appellee costs and fees-including reasonable attorneys' fees and reasonable expert fees. Rule 77(h). As used in Rule 77(h), the term "arbitration award" includes any awarded taxable costs and the term "judgment" includes the verdict obtained in the trial de novo and any taxable costs assessed as part of that judgment. See Vega v. Sullivan , 199 Ariz. 504, 507-08 ¶¶ 10-12, 19 P.3d 645, 648-49 (App. 2001) (discussing Rule 7(f) of the Uniform Rules of Procedure for Arbitration, the early progenitor of Rule 77(h) ).

¶8 Rule 77(h) 's plain language mandates that a trial court compare the "judgment on the trial de novo" to "the arbitration award" for purposes of determining Rule 77(h) sanctions. Here, the record reflects that the Apodacas filed a single complaint and brought their claims against Keeling in a single lawsuit. The arbitrator consequently issued a single arbitration award. Accordingly, after Keeling appealed that arbitration award, the superior court issued one judgment. Moreover, because Keeling did not contest liability in arbitration or at trial and the individual plaintiffs had no claims against the other plaintiffs, the only issue in both proceedings was damages. Under these circumstances, comparing the total arbitration award to the total judgment was the proper method to determine whether the result of the trial de novo was sufficiently more favorable than the arbitration award. Because the difference between the judgment and arbitration award was 24.8%, Keeling met the 23% threshold to avoid the award of sanctions. The trial court thus erred in finding that Keeling did not receive a sufficiently favorable judgment to avoid Rule 77(h) sanctions.

¶9 The Apodacas argue that the Rule 77(h) analysis "should be done on a party-by-party basis." They rely on Fisher v. Edgerton , 236 Ariz. 71, 336 P.3d 167 (App. 2014), for support. That decision is inapposite to the case before us, however. Fisher held only that Rule 77 sanctions are appropriate between defendants when one defendant is seeking to shift liability to another defendant. Id. at 76 ¶ 12, 336 P.3d at 172 ("The sole issue before us is whether Rule [77(h) ] applies between multiple defendants when the appealing defendant unsuccessfully tries to shift comparative fault to the appellee defendant at the trial de novo."). This case involves no liability shifting, only the determination of the amount of damages one defendant owes the plaintiffs. Thus, the proper analysis is to compare the total arbitration award and costs to the total judgment and costs on appeal. The trial court erred in failing to do so.

CONCLUSION

¶10 For the foregoing reasons, we affirm the superior court's judgment but strike the sanctions pursuant to Rule 77, as identified in part 3 of that judgment. We deny Keeling's request for attorneys' fees because it was only made in her reply brief. See ARCAP 21(a)(1) ("A party claiming attorneys' fees must to so in an opening or an answering brief on appeal."). As the prevailing party, however, she is entitled to costs incurred on appeal upon her compliance with ARCAP 21.

      Keeling cites to Rule 77(f) in her appellate briefs, which was changed to Rule 77(h) in 2017. Absent material revision from the relevant date, we cite the rule's current version.

      The record also refers to him as Jesus Apodaca Flores.

      Because the plaintiffs share the name Apodaca, this Court, with respect, will refer to them individually by their first names.


author: Opinion by JUDGE GRAHAM

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Joseph GARNER, Defendant-Appellant.
    Court of Appeals No. 12CA2540
    Colorado Court of Appeals, Division IV.
    Announced December 17, 2015
    Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Douglas K. Wilson, Colorado State Public Defender, Rachel C. Funez, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by JUDGE GRAHAM

¶ 1 Defendant, James Joseph Garner, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of attempted reckless manslaughter, one count of first degree assault, and one count of reckless second degree assault. We affirm.

I. Background

¶ 2 According to the People's evidence, C.A.D. and his brothers R.A.D. and A.A.D. were celebrating C.A.D.'s birthday at a bar. Defendant, his girlfriend Jaime Velasquez, and approximately four other individuals were also at the bar. During the night, a male from defendant's group approached C.A.D. and asked him whether he belonged to a gang. C.A.D. said he did not. Shortly after this encounter, C.A.D. left the bar to go home.

¶ 3 However, C.A.D. returned to the bar with his friend Gabriel Reyes to give his two brothers a ride home. Before the group left, R.A.D. went to the bathroom. On his way back from the bathroom, someone from defendant's group pushed R.A.D. into a table. During the ensuing chaos, defendant shot at R.A.D., grazing his wrist. Defendant then turned, shot, and injured both C.A.D. and A.A.D. After the shooting, defendant and his group fled through the back door. Defendant's glasses, spattered with his blood, were found on the floor of the bar. Also, a bar employee found Velasquez's cell phone containing pictures of defendant and Velasquez taken at the bar. These photos were used to locate and identify defendant.

¶ 4 Before trial, no witness was able to positively identify defendant from a photo lineup. However, at trial, all three brothers identified defendant as the shooter. The defense argued at trial that defendant was not the shooter.

¶ 5 Defendant was found guilty and sentenced to thirty-two years in the custody of the Department of Corrections.

II. In-Court Identifications

¶ 6 Defendant first contends that his right to due process and the requirements of various rules of evidence were violated when the court allowed the brothers to make impermissibly suggestive in-court identifications after failing to make a pretrial identification. We disagree.

A. Standard of Review

¶ 7 Reviewing the constitutionality of in-court identification procedures is a mixed question of law and fact. We give deference to the trial court's finding of fact while conclusions of law are reviewed de novo. Bernal v. People, 44 P.3d 184, 190 (Colo.2002).

¶ 8 We review the admission of first time, in-court show-up identifications by considering whether the identification is the product of constitutionally impermissible suggestive circumstances. People v. Monroe, 925 P.2d 767, 775 (Colo.1996).

¶ 9 We review evidentiary rulings for an abuse of discretion. People v. Clark, 2015 COA 44, ¶ 14, 370 P.3d 197.

B. Applicable Law

¶ 10 An in-court identification, made by a witness who attended an illegal, pretrial lineup, is permissible only after there is a determination that the in-court identification is based upon a source independent of the improper lineup identification. This determination is made by the trial court, considering the totality of the circumstances. United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Monroe, 925 P.2d at 770. The harm sought to be precluded is the likelihood that the in-court identification is the product of the illegal lineup and not the observation of the defendant's wrongful act. Monroe, 925 P.2d at 774.

¶ 11 In considering the totality of the circumstances the trial court should review five factors to gauge the likelihood of misidentification and apply an exclusionary rule: (1) the opportunity of the witness to view the accused; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). This analysis deals with the exclusion of impermissible pretrial identifications and the in-court identifications that follow them. United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.1986).

¶ 12 The majority of courts addressing this issue have determined that Neil v. Biggers does not apply to in-court identifications. See Byrd v. State, 25 A.3d 761, 765 (Del.2011) (remedy for alleged suggestiveness is cross-examination and argument); State v. King, 156 N.H. 371, 934 A.2d 556, 559-60 (2007) (fact finder can observe witness during in-court identification process and evaluate the reliability the identification); State v. Lewis, 363 S.C. 37, 609 S.E.2d 515, 517-18 (2005) (remedy for alleged suggestiveness is cross-examination and argument).

¶ 13 Colorado has rejected a rule that one-on-one show-up identifications are per se violations of due process. Monroe, 925 P.2d at 773. Indeed, People v. Monroe made it clear that "[t]he exclusionary rule has not been extended to in-court identifications alleged to be suggestive simply because of the typical trial setting." Id. at 775. It is the duty of the jury to assess the reliability of identification evidence unless there is a very substantial likelihood of misidentification. Id.

C. Analysis

¶ 14 The parties dispute whether this issue was properly preserved for appeal. Here, all three brothers made in-court identifications of defendant as the shooter. The first identification was made late in the afternoon, and the court adjourned roughly ten minutes after this identification. The following morning, before questioning continued, defendant objected to the identification as an impermissible one-on-one show-up identification. The court allowed the People to submit case law on the issue and took it under advisement. Defendant contemporaneously objected to the next two in-court identifications, and the court overruled both objections.

¶ 15 The People contend that defendant waived any objection because he failed to ask the trial court to make a final ruling regarding the identifications. However, it is unclear from the record whether the trial court did in fact make a final ruling on the objection. Because the record is not clear as to the trial court's intentions in overruling the objection and defendant clearly contemporaneously objected to the second and third in-court identifications, we conclude that this issue was preserved.

1. Lack of Pretrial Identifications

¶ 16 During the police's investigation and at trial, the brothers gave varying descriptions of the shooter and his clothing. The brothers' description of the events leading up to the shooting was also wide-ranging. As part of the investigation, the brothers had each been shown a photo lineup with the defendant's picture prior to trial; however, at no point were the brothers given the opportunity to identify the defendant in an in-person lineup. None of the witnesses was able to definitively identify defendant as the shooter from the photos. C.A.D. was able to positively identify defendant as being present at the bar the night of the shooting, but could not confirm that he was the shooter. A.A.D. and R.A.D. were not able to identify defendant from the photos as being present at the bar the night of the shooting.

2. Defendant's Presence at the Bar

¶ 17 While there were varying accounts and descriptions of the events on the night of the shooting, it was definitively established at trial that defendant was at the bar on the night of the shooting. First, defendant's DNA was found on a pair of glasses found at the crime scene. Second, a bar employee testified that she saw defendant and Jaime Velasquez taking pictures together on Velasquez's phone a short time before the shooting. That same employee found the phone on the floor following the shooting and, using the photos of defendant and Velasquez from the phone, the police created a bulletin to help locate defendant as a person of interest.

3. In-Court Identifications

¶ 18 At trial, each brother identified defendant as the shooter. Each identification took place while defendant was sitting at the defense table. Despite not having been able to identify defendant as the shooter from the photo lineup, all three of the brothers were certain at trial that defendant was the individual who shot them. The following testimony by one of the brothers is typical of how the in-court identifications were made:

[Prosecutor]: Now, Mr. [R.A.D.], do you see anybody here in the courtroom today who shot at you on that particular evening?
[R.A.D.]: Can I point?
[Prosecutor]: If you recognize somebody as the person who shot at you and the person who shot your brother [C.A.D.], yes, you can tell the Court or the jury where he's seated and tell them an item of clothing he is wearing.
[R.A.D.]: Right now?
[Prosecutor]: Yes.
[R.A.D.]: He's got a shirt that's blue in color.
[Prosecutor]: And can you tell the jury where he's seated? You can point to him if you need to.
[R.A.D.]: Yeah. It's over there.
[Prosecutor]: Let the record reflect the defendant's been identified....

¶ 19 Although counsel contemporaneously objected to two of the identifications on the basis that they were one-on-one show-ups, there was no specific argument about what counsel contended were the constitutionally impermissible and suggestive circumstances other than the fact that these identifications occurred in the courtroom setting.

¶ 20 One-on-one confrontations are viewed with disfavor because they tend to be suggestive and present greater risks of mistaken identification than a lineup. People v. Walker, 666 P.2d 113, 119 (Colo.1983). But, one-on-one confrontations are not per se violations of due process. Id. An in-court identification is properly considered by the jury if it does not stem from a constitutionally defective identification procedure. Monroe, 925 P.2d at 771 (citing Coleman v. Alabama, 399 U.S. 1, 4-5, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) ).

¶ 21 Here, counsel argued that the brothers had been unable to identify defendant as the shooter prior to trial. While the inability of a witness to identify the defendant in a photographic lineup is relevant and certainly grist for cross-examination, it does not, as a matter of law, preclude him from making an identification upon seeing the defendant in court. People v. Horne, 619 P.2d 53, 57 (Colo.1980) ; People v. Borrego, 668 P.2d 21, 23 (Colo.App.1983). Instead, the previous inability to identify goes to the weight of his identification testimony rather than its admissibility. Horne, 619 P.2d at 57 ; see also United States v. Brown, 200 F.3d 700, 707 (10th Cir.1999) (victim's identification of the defendants at trial, while the product of a suggestive procedure, occurred in the presence of the jury and the victim was fully and fairly cross-examined about the process and his previous inability to positively identify the defendants); United States v. Aigbevbolle, 772 F.2d 652, 654 (10th Cir.1985) (failure to identify the defendant from the photo array pretrial reflected merely on the weight of her in-court identification rather than its admissibility).

¶ 22 Defendant maintains that it would have been impossible for the brothers to all fail to identify defendant as the shooter in a photo lineup yet successfully identify him in court. That is certainly a fair argument. But as the cases hold, the previous failure to identify defendant is an issue that goes to weight of the identification and not the admissibility of the identification. Byrd, 25 A.3d at 767.

"When the initial identification is in court, ... [t]he [fact finder] can observe the witness during the identification process and is able to evaluate the reliability of the initial identification." Domina, 784 F.2d at 1368 (citation omitted). In addition to affording the fact finder the opportunity to observe and assess the identification itself, an initial in-court identification is subject to immediate challenge through cross-examination. Not only is counsel present, but the jury has full opportunity to view the circumstances and assess evidentiary worth.

King , 934 A.2d at 560 (some citations omitted).

¶ 23 Here, while the three brothers' in-court identifications may have been the product of a suggestive procedure, we conclude that the trial court did not err in admitting the evidence. The fact that the brothers could not identify defendant as the shooter using a photo lineup goes to the weight, not the admissibility of the in-court identifications. This was the first time since the shooting that the brothers had seen the defendant in person. At trial each brother was certain that defendant was the shooter. Each identification was done in the presence of the jury and the jurors were in the best position to assess the credibility of each brother. Indeed, defense counsel extensively cross-examined and impeached each of the brothers with their prior inconsistent statements and inability to identify defendant as the shooter from the photo lineup. Because the jury had the opportunity to give the in-court identifications whatever weight it deemed appropriate and defendant was given a full and fair opportunity to cross-examine each of the in-court identifications, we conclude that his right to due process was not violated and the trial court did not err in admitting the in-court identifications.

III. Prosecutorial Misconduct

¶ 24 Defendant next contends that numerous instances of prosecutorial misconduct violated his right to a fair trial. We agree that there was one potential instance of misconduct, but conclude it does not require reversal of defendant's conviction.

A. Standard of Review and Applicable Law

¶ 25 Prosecutors must "refrain from improper methods calculated to produce a wrong conviction." Wilson v. People, 743 P.2d 415, 418 (Colo.1987) (citation omitted). In reviewing prosecutorial misconduct claims, "the reviewing court engages in a two-step analysis." Wend v. People, 235 P.3d 1089, 1096 (Colo.2010). First, we "determine whether the prosecutor's questionable conduct was improper based on the totality of the circumstances." Id. In doing so, we "must evaluate the severity and frequency of misconduct, any curative measures taken by the trial court to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to the defendant's conviction." People v. Hogan, 114 P.3d 42, 55 (Colo.App.2004). The determination of whether a prosecutor's words and actions amount to misconduct is generally left to the sound discretion of the trial court. Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo.2005) ; People v. Rhea, 2014 COA 60, ¶ 42, 349 P.3d 280. Second, we consider whether such actions warrant reversal according to the proper standard of review. Wend, 235 P.3d at 1096.

B. Preserved Contentions

¶ 26 Defendant presents three instances of alleged misconduct in which a contemporaneous objection was made. "As to preserved issues, the trial court's rulings on prosecutorial misconduct 'will not be disturbed by an appellate court in the absence of a gross abuse of discretion resulting in prejudice and a denial of justice.' " Rhea, ¶ 42 (quoting People v. Moody, 676 P.2d 691, 697 (Colo.1984) ). We review preserved errors for harmlessness. Wend, 235 P.3d at 1097.

1.

¶ 27 First, defendant contends the prosecutor misled the jury during his direct examination of the investigating detective. Specifically, defendant maintains the prosecutor misstated C.A.D.'s previous statements to police.

¶ 28 We perceive no error. Defendant objected when the prosecutor began asking about C.A.D.'s previous interview with the police. In response, the court instructed the prosecutor to ask questions using "what was said in the transcript specifically." Because the prosecutor asked questions quoting directly from C.A.D.'s previous interview we cannot conclude the prosecutor misled the jury and, thus, these questions were not improper.

2.

¶ 29 Next, defendant contends the prosecutor improperly asked the detective whether in-person lineups are more likely to produce an identification rather than a photo lineup without having given pretrial notice that the detective would offer expert testimony.

¶ 30 The following exchange took place:

[Prosecutor]: Have you had the opportunity to have in-person lineups done?
[Detective]: Yes.
[Prosecutor]: And based on your training and experience are those a preferred method to a photographic lineup?
[Defense counsel]: Objection. This witness is not endorsed as an expert, this is 702 material. We don't have an expert endorsement.
...
[Court]: Well, I think the question was what he preferred and the jury can only use it for that purpose what this particular witness prefers. I'll allow it, allow him to answer that question.
...
[Detective]: Yes, I prefer an in-person lineup.
[Prosecutor]: Why is that?
[Detective]: Because an individual during an in-person lineup can actually see more than what's in a photograph. They can see the height, the weight, the stature of the individual, the facial gestures, motion, things like that.
[Prosecutor]: And based upon your personal experience, when you do an in-person lineup, are those-are you more likely to get an identification than in a photographic lineup?
[Defense counsel]: Objection
[Court]: Sustained

¶ 31 We discern no error. The court sustained defense counsel's objection and did not allow the detective to answer whether in-person lineups were more likely to produce identifications. The initial exchange went to the detective's personal preference and these questions were proper, because the detective, as a lay witness, had substantial experience conducting photo lineups.

3.

¶ 32 Last, defendant contends that the prosecutor improperly impeached defendant's ex-girlfriend, Irma Cisneros, with a pending felony charge, which the Adams County District Attorney was also prosecuting. We discern no error.

¶ 33 Here, outside the presence of the jury, defense counsel requested that the prosecution not be permitted to inquire about Cisneros' pending felony charge. Using the reasoning of Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the court determined that the prosecution was able to inquire into the pending felony charge to show bias. The court limited questions that could be asked and did not allow the prosecution to bring up the specific charge of felony assault on a police officer. The prosecutor complied with the limiting instructions and on cross-examination asked, "you are currently facing charges and being prosecuted by our office for other crimes?" Thus, we conclude it was proper to impeach Ms. Cisneros regarding her felony charge, and no misconduct occurred.

C. Unpreserved Errors

¶ 34 Defendant next presents roughly fifteen instances in which he contends the prosecutor committed reversible misconduct to which he did not contemporaneously object to. Because defendant's remaining misconduct claims were not preserved, our review is for plain error. Wend, 235 P.3d at 1097. Prosecutorial misconduct rarely constitutes plain error. People v. Estes, 2012 COA 41, ¶ 19, 296 P.3d 189. To warrant reversal, the "misconduct must be flagrant or glaring or tremendously improper, and it must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction." People v. Weinreich, 98 P.3d 920, 924 (Colo.App.2004), aff'd, 119 P.3d 1073 (Colo.2005).

¶ 35 "Defense counsel's failure to object is a factor that may be considered in examining the impact of a prosecutor's argument and may 'demonstrate defense counsel's belief that the live argument, despite its appearance in a cold record, was not overly damaging.' " People v. Strock, 252 P.3d 1148, 1153 (Colo.App.2010) (quoting People v. Rodriguez, 794 P.2d 965, 972 (Colo.1990) ).

1.

¶ 36 Defendant first contends the prosecutor improperly injected her personal knowledge of outside evidence and bolstered the brothers' credibility when she asked the detective, "And in your report did you include everything that they had said or just the additional information." And, "When you wrote the report in that case, did you report everything that was said that day?" Defendant alleges that these questions implied that the brothers had been giving consistent statements when speaking to detectives. However, these questions merely established that the detective's second report after interviewing a witness would not contain information that the witness had previously given. We are not persuaded that this line of questioning injected the prosecutor's personal knowledge of outside evidence.

2.

¶ 37 Defendant next claims the prosecutor improperly asked questions on redirect of the bar manager that misstated his previous testimony. At issue was whether the bar manager had seen what the shooter was wearing. During the exchange the prosecutor asked:

[Prosecutor]: Now, the person who ran past you who was firing shots, can you please tell the jury what shirt he was wearing?
[Bar manager]: He had a black shirt on. It was a black shirt kind of like this with a red stripe on the sleeve on this side.

Later the prosecutor asked:

[Prosecutor]: The person that you saw that ran by you with the black shirt and the red stripes on the sleeve, that was the person that you saw firing shots; right?
[Bar manager]: No, I didn't see anybody shooting. As I was saying, the bar is high and I wasn't able to see, so I couldn't see their hands. I just saw him running past.

On redirect examination defendant contends the prosecutor committed misconduct by asking:

[Prosecutor]: The person that you saw come through the bar shooting with the black shirt with the red stripes, that person was with the group with the women?
[Bar manager]: You know, that he was-the one causing the problems, yes. If he was the one that fired, I don't know. But that they all left together.
....
[Prosecutor]: And you never saw the face of the person who was firing shots, just the shirt; right?
[Bar manager]: Yes.

¶ 38 We disagree that the prosecutor's questions on redirect were improper. The bar manager first testified that the shooter had a black shirt with red stripes. The bar manager later testified he did not see the shooter. Thus, the prosecutor's questions on redirect were proper given the inconsistent testimony and the varied answers already given.

3.

¶ 39 Defendant also contends the prosecutor, in multiple instances, improperly asked questions that implied a man described as "norteño pelón" had not previously been identified as the shooter. We conclude the prosecutor's questions were proper. Defendant fails to point out any conclusive statements the brothers made that specifically identified the shooter as the "norteño pelón." Thus any questions clarifying witnesses' statements were proper especially given the fact that many of the witnesses had given varied descriptions of the shooter on different occasions.

¶ 40 Defendant also contends that the prosecutor improperly elicited testimony that interchanged the words "pelón" and "bald" from witness statements. However, we find no misconduct because it was clearly established that pelón means "bald" in Spanish.

4.

¶ 41 Additionally, defendant asserts the prosecutor asked the detective a question that mischaracterized Gabriel Reyes' testimony. The prosecutor asked, "Do you remember Gabriel Reyes testifying that a man came in moments after him with two guns and handed one to the defendant?" In his testimony Reyes used the word "shooter" instead of "defendant." However, defense counsel objected to the question as leading. The court sustained the objection stating, "This is closing argument stuff." Although the prosecutor misstated the previous testimony, we perceive no misconduct because the detective never answered the question. Further, even if it was improper to misstate this testimony, we conclude this was not so flagrant or glaring or tremendously improper so as to rise to the level of plain error. See Rhea, ¶ 71.

5.

¶ 42 Next, defendant states the prosecutor improperly attempted to discredit R.A.D.'s statements made to police the night of the shooting by implying an interpreter had not been present. We disagree that any misconduct occurred.

¶ 43 First, R.A.D. confirmed that the interview with detectives was given with an interpreter present. Second, the detective confirmed that C.A.D.'s wife was helping translate. Third, the prosecutor only asked whether the detectives who interviewed R.A.D. were fluent in Spanish. Because the record does not support defendant's contention, we find no misconduct.

6.

¶ 44 Defendant further argues the prosecutor improperly implied in questioning R.A.D. and the detective that R.A.D. had never said which of the three men was the shooter. Defendant's own brief states this is technically true. Thus, we conclude the questions were proper.

7.

¶ 45 Moreover, defendant declares that the prosecutor elicited testimony that a bar employee never identified the man who came in after defendant's group as the shooter. Defendant fails to point out specifically where in the record the bar employee identified the man who walked into the bar later as the shooter. Instead, the bar employee testified that shooting started right after the man walked into the bar and thus she believed he was the shooter. However, she also testified that she never saw the shooter. Therefore these questions clarifying witness statements were proper.

8.

¶ 46 Defendant also avers that, in questioning the detective, the prosecutor improperly misstated previous statements that A.A.D. had made to him during an interview. Specifically, the detective testified that he did not recall A.A.D. telling him that the man in glasses was not the shooter. We conclude these questions were proper. First, the prosecutor did not improperly lead the detective to answer that A.A.D. had not made the previous statements. Further, defense counsel impeached this testimony and elicited testimony from A.A.D. that he had in fact stated the man with glasses was not the shooter.

9.

¶ 47 Additionally, defendant says the prosecutor improperly pointed to C.A.D.'s and R.A.D.'s medical condition after the shooting to discredit their out-of-court identifications, but failed to bring this up again during other statements which supported the People's case. We conclude that the prosecutor's actions were proper. The prosecution was highlighting a reason, as testified to, why the brothers' statements might have been inconsistent. This is proper argument and no misconduct occurred. See Domingo-Gomez, 125 P.3d at 1048.

10.

¶ 48 Furthermore, defendant maintains that the prosecutor improperly encouraged the three brothers' in-court identifications of defendant. However, each of the three in-court identifications followed the pattern of the sample testimony we have included above and was the product of witnesses who had been sequestered. Each witness pointed to or identified the defendant as the shooter prior to ever being asked to identify defendant as the shooter. Thus, we disagree that the prosecutor improperly encouraged the in-court identifications.

11.

¶ 49 Defendant contends the prosecutor improperly bolstered the brothers' in-court identifications by using a hypothetical in closing argument. The prosecutor proposed that jury members would have a difficult time remembering what the other prosecutor was wearing during trial but would easily recognize her during a later face-to-face encounter. She used this comparison to argue that the brothers may not have recognized the photo of defendant but could have easily recognized him as the shooter during the face-to-face encounter.

¶ 50 Defendant claims that the prosecutor had no good faith basis to argue that the brothers would be able to identify defendant as the shooter three years after the shooting.

¶ 51 We discern no misconduct. During closing argument, counsel may employ rhetorical devices, engage in oratorical embellishment, and employ metaphorical nuances, insofar as they do not induce the jury to determine guilt based on passion or irrelevant issues. People v. Allee, 77 P.3d 831, 837 (Colo.App.2003). During closing argument, prosecutors have wide latitude to address the strength and significance of evidence, as well as any reasonable inferences that may be drawn from the evidence. Domingo-Gomez, 125 P.3d at 1048.

¶ 52 Rather than improperly misleading the jury the prosecutor may have been demonstrating the point that it can be much easier to recognize a person one has met or seen in the past as opposed to describing what that person was wearing at the time of the interaction. Further, it is a reasonable inference that the brothers would not be able to identify defendant from the photos yet would be able to identify him in court. See, e.g., Borrego, 668 P.2d at 23 ; see also United States v. Toney, 440 F.2d 590, 591 (6th Cir.1971).

12.

¶ 53 Next, defendant contends that the prosecutor improperly implied through questioning the detective that, if the brothers had been asked to specifically identify the shooter from the lineup rather than being asked it they simply recognized anyone, they would have been able to identify defendant as the shooter.

¶ 54 We disagree that the prosecutor committed misconduct. Throughout the trial it was clearly established that the brothers were unable to identify defendant as the shooter in any photo lineup. Defense counsel also established that C.A.D. was the only witness who identified defendant as being present the night of the shooting. Thus, we cannot conclude that the prosecutor implied that the brothers would have identified defendant as the shooter if they had been asked that specific question.

13.

¶ 55 Defendant also claims that the prosecutor improperly made herself a witness by placing words into witnesses' mouths. Because we have concluded that the above contentions of misstating witness testimony did not constitute prosecutorial misconduct, we also conclude that the prosecutor did not improperly make herself a witness.

14.

¶ 56 As well, defendant insists that the prosecutor improperly used the word lie during rebuttal closing argument when she stated:

Is it possible that all three of these guys come in here and lie to you and tell you that they're 100 percent sure he's the shooter and that they're all three willing to send an innocent person to get convicted of this? I would submit to you that its not even possible, but it's certainly not reasonable.

¶ 57 Prosecutorial use of the word "lie" and the various forms of "lie" are improper. Wend, 235 P.3d at 1096. In this instance the prosecutor used the word "lie" when hypothecating about the veracity of the three brothers as witnesses, and thus, we will assume it was improper.

¶ 58 In evaluating a prosecutor's argument under the plain error standard, we must "focus on the cumulative effect of the prosecutor's statements using factors including the exact language used, the nature of the misconduct, the degree of prejudice associated with the misconduct, the surrounding context, and the strength of the other evidence of guilt." Id. at 1098 ; see People v. McMinn, 2013 COA 94, ¶ 60, 412 P.3d 551.

¶ 59 In Wend, the prosecutor, during both opening and closing arguments, repeatedly used the words "lie," "lies," and "liar" to describe the defendant's various stories. Here, the prosecutor used the word "lie" one time in an otherwise proper closing argument to question the motives not of the defendant but of material witnesses. Further, she did not suggest that they were lying; rather, she was arguing that they had no motive to lie. Moreover, the defendant did not object to this statement at trial, and it may not have stood out to the jury. Viewing the comments in context and in light of all of the evidence, we conclude that the prosecutor's single use of the word "lie," even if inappropriate, was not so flagrantly, glaringly, or tremendously improper as to rise to the level of plain error. See Domingo-Gomez, 125 P.3d at 1051-52 ; People v. Herrera, 1 P.3d 234, 240-41 (Colo.App.1999) (prosecutor's comment that the defendant was lying was improper but did not constitute plain error).

15.

¶ 60 Finally, defendant contends that the prosecutor improperly implied that Irma Cisneros may have been present at the bar during the shooting despite knowing this was false. During direct examination, both A.A.D. and C.A.D. spontaneously identified Cisneros, who was sitting in the courtroom, as having been present the night of the shooting. However, Cisneros later testified that she and defendant had previously broken up and she was not with defendant at the bar. She further testified that the woman who was with defendant in the photos at the bar had caused the break-up. The prosecutor cross-examined her on this issue and inquired as to why she had been present throughout the trial. The investigating detective also testified that there was no information confirming or denying Cisneros's presence at the bar.

¶ 61 We conclude the prosecutor's actions were not improper. Contrary to defendant's contention, nothing in the record offers definitive proof that Cisneros was not present at the bar. Although she denied having been at the bar, two witnesses spontaneously identified her as having been present at the bar and she was present in the courtroom throughout the duration of the trial supporting defendant. Thus, it was proper for the prosecutor to explore this possibility.

IV. Exhibit 25

¶ 62 Defendant next contends that the trial court committed reversible error in admitting Exhibit 25, a report containing the data extracted from Velasquez's cell phone found at the crime scene. Defendant argues that the data included text messages and photos that were irrelevant and unfairly prejudicial. We disagree.

A. Standard of Review and Applicable Law

¶ 63 A trial court's evidentiary ruling is reviewed for an abuse of discretion. Kaufman v. People, 202 P.3d 542, 553 (Colo.2009). Trial courts have considerable discretion in determining the relevance, probative value, prejudicial impact, and ultimate admissibility of evidence. People v. Ibarra, 849 P.2d 33, 38 (Colo.1993). We will not disturb a trial court's evidentiary ruling unless it is manifestly arbitrary, unreasonable, unfair, or based on a misapprehension of the law. People v. Carter, 2015 COA 24M, ¶ 27 ; People v. Chavez, 190 P.3d 760, 765 (Colo.App.2007).

¶ 64 "Evidence which is not relevant is not admissible." CRE 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401. Relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice. CRE 403. " 'All effective evidence is prejudicial in the sense that it is damaging to the party against whom it is being offered.' " People v. Cardenas, 2014 COA 35, ¶ 52, 338 P.3d 430 (quoting People v. Fasy, 813 P.2d 797, 800 (Colo.App.1991) ). In assessing the admissibility of evidence over a party's CRE 403 objection, "we must assume the maximum probative value of the evidence and the minimum prejudice reasonably to be expected." People v. Curtis, 2014 COA 100, ¶ 49, 350 P.3d 949.

B. Analysis

¶ 65 Here, the cell phone data admitted contained a number of photos from the phone as well as one text message. The data on the phone was relevant to the identification of defendant and the other individuals present at the shooting. The collection of photos included pictures of defendant and Velasquez taken at the bar the night of the shooting. The bar employee who found the phone looked through it with police to see if pictures taken that night would help police identify individuals involved in the shooting. The judge admitted all photos from the phone, even the ones that might have appeared to have been taken on a different date, because the precise date of each photo was not known. Because the photos are relevant to the issue of identification we cannot conclude that the trial court abused its discretion in admitting them into evidence.

¶ 66 Defendant further contends that, even if relevant, the probative value of the data was substantially outweighed by the danger of unfair prejudice. Specifically, defendant alleges that the photos of individuals making hand gestures were unfairly prejudicial because the jury could infer gang affiliations from the gestures. The court determined that the photos were not indicative of gang activity but that it would reconsider its ruling if there was testimony linking the hand gestures in the photos to gang affiliations. However, this testimony was never elicited and the court had no need to address the issue again. This speculative inference is not prejudicial enough to conclude that the trial court abused its discretion in admitting the photos.

¶ 67 Finally, defendant alleges the text message included in the admitted report was unfairly prejudicial. Specifically, the text message sent from the phone on page eight of the report which stated "Na Wre @ cass' hm!es cr!b.. Bt h!s G!tchs mak!nG dum Statements shes Gun Get smashed" was unfairly prejudicial because of its violent nature. This bare and unintelligible text message was not interpreted for the jury nor was it tied to any evidence in the case. Therefore, it was irrelevant; but we find its admission was harmless. Moreover, the court addressed the potentially prejudicial text messages when it excluded page seven of the report that contained text messages forwarded from the Limon Correctional Facility. The probative value of the report was not substantially outweighed by the danger of unfair prejudice. Thus we cannot conclude that the trial court abused its discretion in admitting Exhibit 25.

V. Cumulative Error

¶ 68 Finally, defendant contends that his conviction should be reversed due to cumulative error. We disagree.

¶ 69 Although an appellate court may find that individual errors do not require reversal, numerous irregularities may in the aggregate show the absence of a fair trial. People v. Jenkins, 83 P.3d 1122, 1130 (Colo.App.2003). However, cumulative error applies only if the trial court committed numerous errors. A defendant's mere assertions of error are insufficient to warrant reversal. People v. Blackwell, 251 P.3d 468, 477 (Colo.App.2010).

¶ 70 Here, we have rejected all but a portion of one of defendant's claims of error as harmless. The remaining asserted errors did not singly or cumulatively deny defendant a fair trial. He thus is not entitled to reversal based on a theory of cumulative error.

VI. Conclusion

¶ 71 The judgment is affirmed.

JUDGE ROMÁN and JUDGE VOGT concur.

      After the second and third objections, the trial court made no record of whether the issue was still under advisement.

      We similarly reject the bare evidentiary arguments made under CRE 403, 602, and 701. Defendant did not make specific objections under those rules, and on the basis of our ruling that the identifications were proper, we see no abuse of discretion by the trial court under those evidentiary rules.

      In addition, we note that it was defense counsel who first brought up the pending charges on direct examination.

      We give the benefit of the doubt to defendant, recognizing that simply using the word "lie" is not improper unless it is used to characterize testimony.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S.2015.