author: LEHMAN, Chief Justice.

text:
    2002 WY 65
    Alan L. HASVOLD and Cheryl L. Hasvold, husband and wife, Appellants (Plaintiffs), v. PARK COUNTY SCHOOL DISTRICT NUMBER 6 and Carol Rosencranse, individually, Appellees (Defendants).
    No. 00-344.
    Supreme Court of Wyoming.
    April 30, 2002.

      Representing Appellants: S. Joseph Dar-rah of Darrah & Darrah, P.C., Powell, WY.
    Representing Appellee Park County School District No. 6: Seott E. Kolpitcke of Copenhaver, Kath & Kitchen, LLC, Powell, WY.
    Representing Appellee Rosencranse: Mare C. Thompson of Webster & Thompson, LLC, Cody, WY.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   LEHMAN, Chief Justice.

[11] Appellants Alan and Cheryl Hasvold appeal from the district court's order granting summary judgment in favor of appellees Carol Rosencranse and Park County School District No. 6. The effect of the district court's order was to uphold the validity of the appellees' easements over the Hasvolds' property. We conclude that there are genuine issues of material fact which preclude granting judgments in favor of the appellees at this point in the litigation and, consequently, reverse and remand this case for trial as to the validity of the easements.

ISSUES

[T2] The Hasvolds present the following issues on appeal:

1. Whether the trial court erred in finding a valid easement appurtenant to property owned by Rosencranse when at the time of the granting of the easement the alleged appurtenant parcel owner was different than the grantee of the easement?
2. Whether the trial court erred in finding that the School District did not abandon its easement over appellants' property?

FACTS

[T3] 'This case involves two identical easements across the Hasvold property in Cody. The dominant estates are owned by Rosencranse and the School District. The Hasvold property is located directly east of the Roseneranse property and directly north of the School District property. Originally, the Hasvold, Rosencranse, and School District properties were all owned by William and Marie Ellis.

[14] In 1986, the Ellises conveyed the Rosencranse property to George and Frances Kramer. George Kramer apparently died shortly thereafter; and Frances, subsequently, conveyed the property to their son, Donald Kramer. On August 5, 1987, the Ellises conveyed an easement over the Has-vold property to Tall Oak Tree, Inc. Donald Kramer was an owner and officer of Tall Oak. On August 20, 1987, Kramer conveyed the Rosencranse property to Tall Oak. Tall Oak mortgaged the property to the State of Wyoming, the Small Business Administration, and Western Bank of Cody. Although the record is not clear on this matter, the Small Business Administration apparently took title to the property at some point and then conveyed it to Rosencranse in 1998. The deed from the Small Business Administration to Rosencranse did not expressly mention the easement.

[T5] Rosencranse operates Roger's Sports Center in a commercial building on her property. Rosencranse also leases part of the building to two other business lessees. Rosencranse and her lessees used the casement across the Hasvold property for business purposes.

[16] The School District took title to its property by warranty deed from the Ellises in 1982. The deed expressly granted the School District an easement across the Has-vold property for ingress, egress, and utilities. The School District constructed a middle school on its property and began holding classes in the school in 1994.

[17] The Ellises apparently conveyed the Hasvold property to the Deme Company, and the Deme Company conveyed it to the Has-volds in 1996. The Hasvolds' warranty deed from the Deme Company expressly stated that the conveyance was subject to the easements of public record or otherwise established.

[18] In March 1999, the Hasvolds filed a complaint, requesting that the district court terminate the appellees' alleged easements over their property. The Hasvolds alleged in their complaint that Rosencranse was wrongfully using their property and that the School District had abandoned its easement. The appellees filed separate motions for summary judgment. Rosencranse claimed that, as the successor in interest to Tall Oak, she had a valid easement appurtenant over the Has-volds property, and the School District asserted that it had not abandoned its easement.

[19] The parties submitted several briefs and numerous affidavits to the district court. The district court held a hearing on the summary judgment motions and, subsequent ly, issued an order granting the appellees motions for summary judgment. The district court ruled that the undisputed evidence showed that the School District has used its easement over the Hasvold property in recent time and that such use defeated the Hasvolds' claim that the School District had abandoned its easement. The district court also ruled that Rosencranse owned a valid easement appurtenant for ingress, egress, and utilities over the Hasvold property.

[T10] Rosencranse subsequently amended its answer and counterclaim by adding a claim for a prescriptive easement. That issue was not addressed in the district court's summary judgment decision. Rosenceranse and the Hasvolds agreed to dismiss the prescriptive easement claim without prejudice and stipulated that the district court's summary judgment order was a final order. The district court entered a "Final Order and Order Dismissing Prescriptive Easement Claim Without Prejudice." The Hasvolds filed a timely notice of appeal. Additional facts relevant to specific issues will be set forth in our discussion of those issues.

DISCUSSION

A. Standard of Review

[T11] Our standard for reviewing summary judgments was summarized in Unicorn Drilling, Inc. v. Heart Mountain Irrigation Dist., 3 P.3d 857, 860 (Wyo.2000), as follows:

Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. Mountain Cement Co. v. Johnson, 884 P.2d 30, 32 (Wyo.1994); W.R.C.P. 56(c). We review a summary judgment in the same light as the district court, using the same materials and following the same standards. "We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record." Four Nines Gold, Inc. v. 71 Constr., Inc., 809 P.2d 236, 288 (Wyo.1991). Summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo. 1997); England v. Simmons, 728 P.2d 1137, 1141 (Wyo.1986). We review a grant of summary judgment by deciding a question of law de novo and afford no deference to the district court's ruling on that question. Sammons v. American Auto. Ass'n, 912 P.2d 1103, 1105 (Wyo. 1996); Blagrove, 984 P.2d at 1275.
Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo.1999). A material fact is any fact that, if proved, would have the effect of establishing or refuting an essential element of a claim or defense asserted by a party. Century Ready-Mix Co. v. Campbell County School Dist., 816 P.2d 795, 799 (Wyo.1991).

B. Rosencranse Easement

[T12] The Hasvolds contend that the district court erred when it ruled that Rosencranse held a valid easement appurtenant over the Hasvold property. The Has-volds claim that the Rosencranse easement was "in gross" and personal to Tall Oak because, at the time the Ellises granted it to Tall Oak, Tall Oak did not own the dominant estate. They argue, therefore, that the easement did not follow the land when it was transferred to Rosencranse.

[N18] An easement is defined as "an interest in land which entitles the casement holder to a limited use or enjoyment over another person's property." Mueller v. Hoblyn, 887 P.2d 500, 504 (Wyo.1994); Restatement of Property § 450(a) (1944). In construing an easement, we seek to determine the intent of the parties to the easement. R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo.1999). See also Restatement Third, Property (Servitudes ) § 4.1 (2000). We begin by attempting to glean the meaning of the easement from its language. R.C.R., Inc., 978 P.2d at 586; Steil v. Smith, 901 P.2d 395, 396 (Wyo.1995). If the language of the easement is clear and unambiguous, we interpret the easement as a matter of law, without resorting to the use of extrinsic evidence to determine the parties' intent. Id. If, however, the language is ambiguous, then the court looks to extrinsic evidence to ascertain the parties' intent. R.C.R., Inc., 978 P.2d at 586; Edgcomb v. Lower Valley Power and Light, Inc., 922 P.2d 850, 855 (Wyo.1996).

[N14] We distinguish between appurtenant easements and easements in gross as follows:

" '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, " [aln 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.

R.C.R., Inc. 978 P.2d at 586. The principles recently set out in the Restatement Third, Property are consistent with Wyoming case law. Restatement Third, Property (Servi-tudes ) § 4.1(2000) states:

(1) A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.

Restatement Third, Property (Servitudes ) § 4.5(1) specifically discusses how to distinguish between appurtenant easements and easements in gross:

(1) Except where application of the rules stated in § 4.1 leads to a different result, the benefit of a servitude is:
(a) appurtenant to an interest in property if it serves a purpose that would be more useful to a successor to a property interest held by the original beneficiary of the servitude at the time the servitude was created than it would be to the original beneficiary after transfer of that interest to a successor;
(b) in gross if created in a person who held no property that benefited from the servitude, or if it serves a purpose that would be more useful to the original beneficiary than it would be to a sucees-sor to an interest in property held by the original beneficiary at the time the servitude was created[.]

[115] The Hasvolds point to the case of Town of Moorcroft v. Lang, 779 P.2d 1180 (Wyo.1989), as supporting their position that, in order to create a valid appurtenant easement, the grantee must own the dominant estate at the time of the grant. In the Mooreroft case, we held that a common law dedication of streets creates an appurtenant easement in the street property for use by the public for public purposes. 779 P.2d at 1184. This court applied the "presumed intent" rule and held that the grant of a lot by a developer also passes title to the strip of land which runs from the boundary of the lot to the middle of the adjoining street, subject to the public's easement. Id. The court explained that the result was governed by the fact that creation of an appurtenant easement requires a servient estate and a dominant estate. Id.

[116] We cannot accept the Hasvolds' argument that the Mooreroft case dictates that the grantee of an easement must own the dominant estate at the time the easement is granted in order for the easement to be appurtenant. The facts of the Moorcroft case are vastly different from the facts of this case. Mooreroft was concerned with a public easement created by the dedication of streets, while this case involves a private easement created by an express grant. Moreover, the Mooreroft case could even be said to support a position contrary to the Hasvolds' in light of the fact that the court stated that the easement was appurtenant and the public, as the owner of the dominant estate, did not actually own any real property, which benefited from the easement.

[117] Of course, in the typical situation, the grantee of an appurtenant easement will already have acquired title to the dominant estate when the easement is granted. Nevertheless, the First Restatement acknowledged the possibility that "an easement appurtenant may be created to benefit a person as the possessor of certain land contingent upon his obtaining possession thereof, or upon his future selection of land to which the easement will then become appurtenant." Restatement of Property, § 458, em. a (1944).

[118] In the case at bar, Donald Kramer was the fee owner of the Roseneranse property at the time the Ellises conveyed the easement to Tall Oak. Kramer was an owner and officer of Tall Oak. Tall Oak needed the easement in order to secure financing from its lenders. Shortly after the easement was recorded, Kramer deeded the property to Tall Oak. At that point, the dominant estate and easement right were unified in title to Tall Oak.

[119] Under these circumstances, the fact that Tall Oak did not own the dominant estate when the easement was conveyed does not, by itself, dictate that the easement cannot be interpreted as being appurtenant to the land. The ultimate determinant of whether an easement is appurtenant or in gross is the intent of the parties to the easement. As we stated, supra, in determining the parties' intent, we look first to the language of the easement.

[120] The easement document in this case states, in relevant part:

NONEXCLUSIVE EASEMENT
WILLIAM D. ELLIS and MARIE O. ELLIS, husband and wife, Grantors, for and in consideration of $10.00 and other good and valuable consideration to them in hand paid, the receipt for which is hereby acknowledged, GRANT AND CONVEY, unto TALL OAK TREE, INC., a Wyoming corporation, of 2812 Big Horn Avenue, Cody, Wyoming 82414, Grantee:
A 60-foot nonexclusive easement for ingress and egress, including utilities, being located in Cody, Park County, Wyoming. ...

[121] In R.C.R., Inc., this court identified certain terms which are "badges" of an appurtenant easement, including language which indicates: (1) that the easement was created to benefit a specific tract of land; (2) that the grant was for a perpetual right-of-way for ingress and egress, (8) that the grantee has the right to inspect and maintain the easement; (4) that the right is not limited to the possessor personally; (5) that the grant expressly extends the right to the grantees, their heirs, executors, administrators, successors, assigns and legal representatives; and (6) that the easement document does not contain any limitations on the transferability of the easement to future transfers of both the dominant and servient estates. 978 P.2d at 586.

[122] The easement document in this case incorporates some of the "badges" of an appurtenant easement, but there are others that are noticeably absent. The casement document does not state that the easement is intended to benefit the Rosencranse property. In addition, the document does not expressly state that the right-of-way is perpetual in duration or that the dominant estate owner has the right to inspect and maintain it. There is no language which expressly states that the easement will pass with the title to the property. The grant was simply to Tall Oak Tree, Inc. There was no mention of its successors, heirs, assigns, etc. The aforementioned terms all suggest that the parties may have intended that the easement benefit Tall Oak, personally, rather than the real property. On the other hand, the document does not state that the easement was personal to Tall Oak Tree, Inc. In addition, the document specifically states that the purpose of the easement is for ingress, egress, and utilities. These terms suggest that the easement may have been intended to be appurtenant.

[123] The easement document is sufficiently ambiguous to require the inspection of extrinsic evidence to determine whether the parties to the conveyance intended for the easement to be appurtenant or in gross. Evidence was presented at the summary judgment hearing suggesting that the casement was created to benefit and does benefit the possessors of the Roseneranse property in their use of the property. Specifically, Donald Kramer stated in his affidavit that the easement was created to benefit the property, and Carol Rosencranse averred that she and her lessees use the casement to access the side and back of the building situated on the dominant estate as part of their business activities In contrast, the Hasvolds presented evidence which suggested that the Ellises intended to grant a temporary personal easement to Tall Oak to facilitate the company's construction of an addition to the building located on the Rosen-cranse property. The affidavits of Jerry Mooren and Leroy Ellis indicate that the Ellises attempted to block use of the casement by the owners of the Rosencranse property after the construction project was finished.

[124] Our examination of the evidence submitted in the summary judgment proceeding convinces us that there are genuine issues of material fact as to the intent of the parties to the easement. The district court, therefore, erred when it granted a summary judgment in favor of Rosencranse.

C. School District Easement

[125] The Hasvolds maintain that the district court erred when it granted a summary judgment in favor of the School District. The district court ruled that, as a matter of law, the School District had not abandoned its easement across their property. The School District contends that the district court correctly held that it was entitled to a judgment, as a matter of law, confirming its easement over the Hasvold property.

[126] An easement holder may abandon his easement and relieve the ser-vient estate of the burden of the easement under certain cireumstances. Carney v. Board of County Comm'rs of Sublette County, 757 P.2d 556, 562 (Wyo.1988). "Abandonment of an easement requires an intentional relinquishment indicated by conduct which discloses the intention to surrender the right to use the land authorized by the easement." Mueller, 887 P.2d at 505. As such, the determination of whether or not an easement has been abandoned turns largely upon the intention of the dominant estate owner. Id. at 506 The servient estate owner must prove that the dominant estate owner intended to abandon the easement and such intention "may be inferred only from strong and convincing evidence." Id. (quoting Harrison v. State Highways & Transp. Comm'n, 732 S.W.2d 214, 221 (Mo.App.1987)). Abandonment cannot be established simply by showing a period of nonuse. Mueller, at 505. Abandonment may, however, be proven by showing a period of nonuse and providing evidence of "affirmative and unequivocal acts indicative of an intent to abandon" which are inconsistent with the continued existence of the easement. Mueller, 887 P.2d at 506 (quoting Richards Asphalt Co. v. Bunge Corp., 399 N.W.2d 188, 192-93 (Minn.App. 1987)).

[127] When viewed in the light most favorable to the Hasvolds, the evidence presented in the summary judgment proceedings was not sufficient to justify the district court's decision that the School District had not abandoned its easement. School District employees averred that they used the easement to access an irrigation ditch to burn vegetation in 1994 or 1995. In 1994, the School District erected a chain-link fence around the perimeter of the school property. The fence transects the easement, but the School District did not construct a gate at the point where the fence crosses the easement. Consequently, it was impossible for the School District to access the easement from the northern boundary of the school property without removing the fence. Additionally, the School District created a habitat area on its property adjacent to the easement. The trees, shrubs, and pond in the habitat area may be obstacles to the School District's future use of the easement. There are also piles of dirt, abandoned cars, and weeds obstructing part of the southern end of the easement. The School District has also developed other accesses to its property, potentially vitiating its need to use the easement across the Hasvold property.

[T28] Taken together, this evidence was sufficient to create material issues of fact regarding the School District's intentions as to its future use of the easement. Consequently, we hold that the district court erred by ruling, as a matter of law, that the School District did not abandon its easement.

CONCLUSION

[129] We conclude that there are genuine issues of material fact concerning whether the parties to the Rosencranse easement intended for it to be appurtenant or in gross. Likewise, genuine issues of material fact exist as to whether the School District intended to abandon its easement. This case is, therefore, reversed and remanded to the district court for trial.

      . In order to simplify the discussion in this opinion, we will refer to the respective properties by the name of the party who currently owns the property, regardless of the ownership of the property at the time we are discussing; ie., "the Hasvold property," "the Rosencranse property," and "the School District property."

      . We recognize that, in their statement of the issues, the Hasvolds narrowly defined the issue on appeal as involving the "unity of title" matter. Nevertheless, the Hasvolds and Rosencranse discussed the broader issue of the construction of the easement document and the intent of the parties to the easement in their briefs. Consequently, we are comfortable considering those matters in this decision.

      . The parties presented some issues to the district court pertaining to the admissibility of certain statements in the affidavits of Leroy Ellis and Jerry Mooren. The statements of concern were those allegedly made by Marie Ellis prior to her death. The district court asked the parties to address the evidentiary issues in their supplemental briefs, but the court did not rule on those issues in its decision. We do not need to determine the admissibility of the disputed statements at this juncture because, even without considering those statements, we find that there are genuine issues of material fact concerning the intent of the parties to the easement.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2002 WY 66
    Stephanie Ann FERGUSSON, Appellant (Plaintiff), v. Andrew Joseph FERGUSSON, Appellee (Defendant).
    No. 01-139.
    Supreme Court of Wyoming.
    May 2, 2002.

      Randall B. Luthi of Luthi & Voyles, Thayne, Wyoming, Representing Appellant.
    Kenneth S. Cohen, Jackson, Wyoming, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Pursuant to the parties' divorce decree, Appellant Stephanie Ann Fergusson (the mother) was awarded primary physical custody of the couple's two children. After the mother married a man with three children of his own, Appellee Andrew Joseph Fergusson (the father) observed marked differences in his children's appearance and behavior. At the same time, a rift developed between the mother and her mother, aunt, and grandmother, apparently over their opinions concerning the mother's new marriage and the resulting treatment of her children. The father petitioned to have the custody of the couple's children modified based upon a material change in cireumstances. The trial court found the cireumstances warranted a change in the custody provisions. We affirm.

ISSUES

[T2] The mother presents these issues for our review:

I. Did the district court modify custody of the parties' minor children based upon a lack of visitation provided to the grandparent in violation of Wyoming statutory law and the United States Supreme Court's interpretation [of] the Fourteenth Amendment?
II. Did the district court fail to justify a change in custody from the original divoree decree?

The father states the issue as:

I. Are the district court findings (1) that there were material changes in circumstances, and (2) that the best interests of the children required a change in custody from the mother to the father, supported by the record?

FACTS

[T8] The mother and the father married on April 27, 1994. Two children were born of the marriage. In July of 1999, the couple divorced. The Stipulation and Marital Settlement Agreement filed with the district court provided the parties would share joint legal custody of the children (a daughter born on October 18, 1994, and a son born on February 14, 1996) with the mother having primary physical custody subject to the father's reasonable visitation. A period of relative family harmony ended when the mother remarried. On December 11, 2000, the father alleged changed cireumstances and filed a petition to modify the custody provisions of the divorce decree requesting primary custody of the children be given to him. A trial was held on February 27, 2001.

[14] The father testified that the mother had always been the primary caregiver for the children and had been a good parent. Following the divorce, he and the mother maintained an amiable relationship and were able to effectively manage his visitations with the children. The father resided in Jackson, and the mother resided in Star Valley. The children were happy to visit their father and were equally happy to return to their mother. The otherwise agreeable relationship between the mother and the father gradually became strained when the mother began dating Dee Aullman (the stepfather), the man she later married. The development of the new relationship coincided with the father recognizing a change in his children for the worse. The mother became pregnant, and the children, who were accustomed to living alone with their mother, now shared a two-bedroom home with their stepfather's three children from a prior marriage. The children expressed anxiety about returning to their mother's home after spending the weekend with their father, and the children stated they did not like their stepfather. The children began wetting their beds, and the father noticed the children's appearance worsened.

[T5] The children's maternal grandmother testified her relationship with the mother began to deteriorate at the same time. She too noticed a progressive change in the children's behavior, and the children told her they did not like their stepfather. The children pleaded to stay with their grandmother or their father rather than having to stay with their mother and stepfather. The daughter told her grandmother about a wrongful touching incident involving her and her older stepbrother. The incident was reported to the Department of Family Services, and no further action was taken. The grandmother testified about another incident when the daughter had red marks on her neck. The daughter stated the mother caught her dragging a cat around the house with a rope. The mother did not approve and put either a belt or a rope around the daughter's neck and dragged her around the house to let her know how the cat felt. The grandmother generally described the children's transformation from being full of life and clean into being sullen, aggressive, afraid, and unkempt. The mother's aunt and grandmother echoed the same concerns at trial and recounted several instances which ° they feared posed a danger to the children's well-being. The mother's mother, aunt, and grandmother were no longer allowed to see the children except when the children were in their father's custody.

[16] The daughter's kindergarten teacher testified regarding changes in her personality. The daughter commenced the school year as a happy and polite child but developed signs of aggression and unhappiness. When the teacher asked what was wrong, the daughter stated that her stepfather was mean to her.

[17] The mother and the stepfather testified the new family was experiencing a transitional period but the children were being raised in a loving and safe atmosphere. The mother believed her family was not supportive of her new relationship, and, consequently, she determined it was in the best interests of her immediate family to curtail visitation with the extended family members. The mother also presented testimony from a Head Start counselor who conducted several home visits, and the counselor testified she saw no indications of abuse or neglect.

[18] On March 20, 2001, the trial court issued its decision letter granting the father's petition to modify the eustody provisions. The mother appealed.

STANDARD OF REVIEW

[¥9] "The party seeking a modification of the custody provisions of a divorce decree has the burden of showing that a material and substantial change of cireum-stances has occurred, after the entry of the initial decree, and that modification is in the best interests of the children." Clark v. Alexander, 953 P.2d 145, 150 (Wyo.1998). This court will not interfere with the trial court's decision regarding modification of custody absent a procedural error or a clear abuse of discretion. Id. We recently clarified the definition of an abuse of discretion when we stated 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); see also Pace v. Pace, 2001 WY 43, ¶9, 22 P.3d 861, 19 (Wyo.2001). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Id.

DISCUSSION

A. Grandparent Visitation

[110] The mother claims the trial court improperly considered grandparent visitation in modifying the custody arrangement. She concedes the final order does not require visitation for the maternal grandparent but asserts the trial court's comments and the eventual change of custody "bears the fruit of visitation rights of the grandparent." She points to several instances in the trial tran-seript where the court expressed a concern that she did not permit the children to visit members of their extended family.

[T11] The mother further contends the trial court failed to follow the mandatory statutory procedures of Wyo. Stat, Ann. § 20-7-101(a) (LexisNexis 2001) which permits grandparent visitation. Section 20-7-101(a) provides in pertinent part:

(a) A grandparent may bring an original action against any person having custody of the grandparent's minor grandchild to establish reasonable visitation rights to the child. If the court finds, after a hearing, that visitation would be in the best interest of the child and that the rights of the child's parents are not substantially impaired, the court shall grant reasonable visitation rights to the grandparent.

The mother asserts the trial court did not articulate the rationale for its conclusion that visitation was in the children's best interests and made no determination as to whether visitation would substantially impair the mother's rights.

[112] Finally, the mother claims the trial court's decision violated the Fourteenth Amendment to the United States Constitution. In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the United States Supreme Court recognized the Due Process Clause of the Fourteenth Amendment protects parents' fundamental right to make decisions concerning the care, custody, and control of their children. In light of that decision, the mother argues the trial court must find she was an unfit parent; otherwise, "there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Troxel, 580 U.S. at 68-69, 120 S.Ct. 2054. Troxel, however, involved grandparents who sued as third-parties seeking visitation with their grandchildren. Troxel is distinguishable from the instant case wherein the father, as the other fit parent, filed the petition to modify the custody provisions.

[113] The fundamental fallacy of the mother's argument is, the grandmother did not request visitation rights, either formally or informally. Furthermore, the trial court's order did not provide for grandparent visitation. Therefore, the statute was not at issue, and the Supreme Court's decision in Troxel does not apply. It is true the trial court made it patently clear throughout the trial that it was concerned about the mother no longer allowing her children to visit or maintain contact with her extended family. However, it could give appropriate weight to this consideration in determining what was in the children's best interests. Though we are cognizant of the Supreme Court's rationale in Troxel, under these circumstances we conclude the mother's argument does not have any merit.

B. Required Articulation of Factors

[T14] The mother complains the trial court's order and decision letter do not delineate the basis for its decision and are bereft of any support. She argues that, because the trial court did not articulate the factors in support of its decision, on review this court is left with conjecture and speculation in determining whether the custody modification was justified. The father admits the order is not overly detailed but asserts the transcript contains ample statements of the trial court's concerns and evidence it deemed important.

[115] We have repeatedly implored trial courts, when exercising their discretionary power in custody matters, to place the cireumstances and factors which were crucial to their custody determinations on the record. If they did so, the reviewing court could better understand and evaluate the soundness of their decisions. See Produit v. Produit, 2001 WY 123, ¶¶10-13, 35 P.3d 1240, ¶¶10-13 (Wyo.2001); Pace, 2001 WY 43, ¶15, 22 P.3d 861; Reavis v. Reavis, 955 P.2d 428, 481-82 (Wyo.1998). We continue to encourage trial courts to rely on their discretionary power to make a record of the critical cireumstances and factors which constitute the foundation of a custody award. Produit, 2001 WY 123, ¶10, 35 P.3d 1240. However, except in instances involving unconventional custody approaches, trial courts are not required to do so. We have placed the onus on the parties to request findings of fact and conclusions of law pursuant to W.R.C.P. 52(a). Id.; Pace, 2001 WY 43, ¶16, 22 P.3d 861; RDS v. GEMN (In re MS), 9 P.3d 984, 986 (Wyo.2000). Neither party made such a request and, therefore, cannot be heard to complain about the absence of formal findings. Resor v. Resor, 987 P.2d 146, 148 (Wyo.1999).

[116] A trial court may modify an order concerning the custody of children if either parent shows a material change in cireumstances and the modification would be in the children's best interests pursuant to Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2001). Wyo. Stat. Ann. § 20-2-204(c) (Lexis-Nexis 2001). Section 20-2-201(a) became effective July 1, 2000, and sets out the factors the court shall consider in making the proper disposition of children in a divorce. Although not specifically requiring findings as to the various factors, the statute does direct the court to consider specific factors in ordering the disposition of children. Produit, 2001 WY 123, ¶12, 35 P.3d 1240. "On appeal, this court can ascertain whether the factors have been appropriately weighed only if the district court's consideration is reflected in the proceeding transcripts, by opinion letter, or as findings in the written order." Id. Remand may be necessary if the consideration of § 20-2-201(a) factors is not patent in the district court record. Id. at T 13.

[T17] We agree the trial court in this instance provided only a seant explanation of its reasoning in the decision letter and order modifying the eustody provisions. However, consistent with Produit, we may look to the trial transcripts to determine whether the court's considerations are adequately set forth and comply with § 20-2-201(a). Several indications in that transeript prove the trial court was assured that substantial and material changes in cireum-stances had occurred and it was in the children's best interests for them to live with their father.

[T18] The order states there was a change in cireumstances that negatively impacted the children; the children were in an unhealthy and unhappy environment; and, as a result, it was in their best interests to be under their father's care, guidance, and supervision. Each case requires the trial court to carefully weigh the relevant factors while looking to the unique and individual family relationships in reaching a resolution which is in the best interests of the children in that family. Reavis, 955 P.2d at 431. In this case, the trial court heard testimony that, upon the mother's remarriage, the children exhibited disturbing changes in both their behavior and their appearance. It is true that remarriage by one of the divoreed parents, standing alone, does not constitute a material change in circumstances sufficiently substantial and material to justify a custody modification. Kreuter v. Kreuter, 728 P.2d 1129, 1180 (Wyo.1986). However, the addition of what would soon be four other children to the equation in addition to friction with the stepfather can be considered a material change in cireumstances sufficient to justify a custody modification. Additional evidence included poor treatment by the stepfather and an improper touching incident between the daughter and her stepbrother. The trial court heard testimony from several witnesses that the daughter became aggressive and sullen, the children repeatedly expressed their dislike for the stepfather, there were several instances of alleged maltreatment, and the children's appearances changed for the worse. The court also heard the stepfather's testimony in which he admitted withholding the children from their relatives was against their best interests. The court said, "I think the kids are unhappy. I think they're sad. I think the situation is unhealthy."

[119] The court's paramount concern is the children's welfare. Laughton v. Laughton, 71 Wyo. 506, 259 P.2d 1093, 1095 (Wyo.1953). The trial court's comments reveal that, due to the material and substantial changes in cireumstances, it was in the children's best interests for them to be in their father's custody. We are persuaded the trial court considered the § 20-2-201(a) factors and its considerations are adequately reflected in the record. Therefore, we conclude it is not necessary to remand this case for further findings.

[120] Affirmed.


author: HILL, Justice.

text:
    2002 WY 67
    MULTIPLE RESORT OWNERSHIP PLAN, INC., and Owners' Resorts & Exchange, Inc., Appellants (Defendants), v. DESIGN-BUILD-MANAGE, INC., Appellee (Plaintiff).
    No. 01-157.
    Supreme Court of Wyoming.
    May 2, 2002.

      Deborah Ford Mincer of Murane & Bo-stwick, LLC, Cheyenne, WY, Representing Appellants. Argument by Ms. Mincer.
    Gregory C. Dyekman of Dray, Thomson & Dyekman, P.C., Cheyenne, WY, Representing Appellee. Argument by Mr. Dyekman.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   HILL, Justice.

[T1] Multiple Resort Ownership Plan, Inc. (MROP) and Owners' Resorts & Exchange, Inc. (ORE) (collectively Appellants) appeal the denial of a motion to set aside an entry of default and a default judgment. We affirm the entry of default but reverse and remand the default judgment.

ISSUES

[T2] Appellants present four issues for review:

1. Whether the trial court abused its discretion by refusing to set aside the entries of default and default judgments after specifically finding that the lawyer for the Appellants had the impression that he had an extension of time in which to respond to the complaint?
2. Whether the trial court abused its discretion by refusing to set aside the entries of default and default judgments where no notice was given to the Appellants of the applications for judgments?
3. Whether the underlying judgments are void as a matter of law, because they awarded relief for unliquidated damages and foreclosure without a hearing?
4. Whether the trial court's refusal to set aside the entries of default and default judgment violated judicial policy regarding default judgments when no finality and no judicial efficiency was promoted by the denial of the motion?

Design Build Manage, Inc. (DBM) condenses the matter to a single issue:

Whether the trial court abused its discretion in denying Appellants' Motion to Set Aside the Entries of Default and Default Judgments.

FACTS

[T3] MROP and ORE are nonprofit Utah corporations,. MROP owns timeshare resorts, and ORE manages the properties. ORE, as the agent of MROP, entered into a contract with Jackson, Wyoming based contractor DBM to refurbish an old motel. Pursuant to the contract, ORE was to pay DBM "a total to be determined through 'cost plus' based on original bid [with] changes to be approved." Appellants approved various changes, so the cost of the project escalated as the work progressed. When the project was completed, Appellants expected a final bill for around $15,000. Instead, DBM presented a final bill for about $300,000, which Appellants refused to pay. As a consequence of the dispute with Appellants, DBM found itself unable to pay its materialmen and suppliers for their work. One of the material-men on the project, Jackson Lumber, ultimately filed suit against Appellants and DBM.

[14] Between October 2000 and December 2000, Appellants canceled several meetings scheduled to 'diseuss possible settlements. In early January 2001, DBM sent a notice of intent to file a lien. Appellants' Utah attorney, Joseph Hatch (Hatch), contacted DBM's attorney, David DeFazio (De-Fazio), and suggested the parties could work out their differences. The parties finally met in Salt Lake City on January 17, 2001, but were unable to bridge the substantial gap between their positions. Consequently, DBM filed a claim for a contractor's lien against Appellants' Jackson property. Shortly thereafter, DBM filed an action against Appellants alleging breach of contract, quantum meruit/unjust enrichment, and seeking foreclosure of the lien. The Complaint sought total damages of $299,886.19.

[15] The Complaint was served upon Appellants on March 1, 2001, at their offices in Salt Lake City. Upon receipt of the Complaint, Hatch contacted DeFazio and requested an open extension of time to file an answer. The parties' recollections of their conversation differ substantially. Hatch testified that when he requested the extension, DeFazio's response was, "We'll certainly work with you on this." Hatch took this to mean that his request was granted. DeFa-zio, on the other hand, insisted no request for an open extension of time was made. He indicated that Hatch did mention the possibility of getting an extension for some period of time in order to work on a settlement. DeFazio testified that he was not open to an extension based upon his perception that Appellants were employing stalling tactics. He stated that his comment on working with Appellants related to the possibility of settlement and not to an open extension on a filing date for an answer.

[16] Over the next few weeks, DBM sent two letters to Appellants, through their attorney. On March 9, 2001, DeFazio mailed an "Acceptance of Service" to Hatch with a request that he sign and return it. Later, Hatch admitted that he simply put the letter and "Acceptance of Service" in a file and did not respond. DeFazio sent the second letter on March 21, 2001, which informed Hatch that interrogatories and a request for production of documents would be sent within the next week and requested a detailed enumeration of Appellants' objections to DBM's billing. The letter also included an offer to listen to any suggestions that Hatch might have on a potential settlement. Again, De-Fazio did not receive a reply to his letter from either Hatch or Appellants.

[T7] It perhaps was inevitable then that Appellants did not file an answer prior to the expiration of the thirty-day limit. On April 8, 2001, DBM filed a request to enter default pursuant to W.R.C.P. 55, which the clerk of the district court duly entered on the same day. Contemporaneously with its request for an entry of default, DBM filed an application for default judgment. In an attached affidavit by its attorney, DBM reiterated the amount of damages set forth in the complaint at $299,836.19 and also requested relief in the form of a lien foreclosure. After considering the application and the filings in the record, the district court granted default judgment in the amount of damages requested and authorized foreclosure against Appellants.

[T8] Appellants moved to set aside the entry of default and default judgment. Appellants argued that Hatch's belief that he had obtained an open extension from DeFa-zio constituted a "mistake, inadvertence, surprise, or excusable neglect" pursuant to W.R.C.P. 60(b)(1) justifying relief from the entry of default. Appellants also contended they had made an appearance in the proceedings pursuant to W.R.C.P. 55(b)(2) and, accordingly, were entitled to three days' notice of the application for entry of default. Finally, Appellants attacked the default judgment by claiming that any monetary damages were unliquidated, necessitating a hearing, and that the lien was void for DBM's failure to comply with statutory requirements. After a hearing, the district court denied Appellants' motions. The court concluded that Appellants had failed to provide sufficient grounds for setting aside the entry of default and had not made an appearance in the case. The court also found the damages claimed to be liquidated in nature. Appellants now bring their claims before this Court.

DISCUSSION

Entry of Defoult

[19] Entry of default is a clerical act performed by the clerk of court and is not a judgment. W.R.C.P. 55(a). The entry of default forecloses the defaulting party from making any further defense or assertion with respect to liability or any asserted claim. Vanasse v. Ramsay, 847 P.2d 993, 996-97 (Wyo.1998) (quoting Spitzer v. Spitzer, 777 P.2d 587, 592 (Wyo.1989)). "Although the entry of default generally establishes the fact of liability according to the complaint, it does not establish either the amount or the degree of relief." Id.

[110] The procedure for setting aside an entry of default is set forth W.R.C.P. 55(c):

For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

W.R.C.P. 60(b) sets forth the grounds constituting good cause for setting aside an entry of default:

On motion, and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

The decision on whether good cause exists under Rule 60(b) to set aside an entry of default is consigned to the discretion of the district court. Fluor Daniel (NPOSR), Inc. v. Seward, 956 P.2d 1131, 1134 (Wyo.1998), cert. denied, 525 U.S. 983, 119 S.Ct. 507, 142 L.Ed.2d 402 (1998); Whitney v. McDonough, 892 P.2d 791, 794 (Wyo.1995). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Erhart v. Evans, 2001 WY 79, ¶11, 30 P.3d 542, ¶11 (Wyo.2001) (quoting Belless v. Belless, 2001 WY 41, ¶6, 21 P.3d 749, ¶6 (Wyo.2001)); see also, Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

[T 11] We have set out the analytical process to be applied by the district court in exercising its discretion whether to set aside an entry of default:

The court first must consider whether the filed motion articulates a reason for relief under WYO. R. CIV. P. 60, and that is a question of law to be reviewed for correctness.... When an appropriate reason is set forth, the exercise of discretion in granting or denying relief depends upon the facts of the case. In making that decision, the trial court is to consider whether the moving party established the articulated grounds for relief and demonstrated a meritorious defense. Even if these conclusions are in the affirmative, the trial court still must determine whether the plaintiff will be prejudiced and whether culpable conduct on the part of the defendant resulted in the default. Our review of this sequence of determinations by the trial court is limited to a determination of whether in resolving these questions the trial court abused its discretion. Carlson v. Carlson, 886 P.2d 297, 801 (Wyo.1992); followed in Whitney, 892 P.2d at 794; Vanasse, 847 P.2d at 996.

Fluor Daniel, 956 P.2d at 1134.

[T12] Appellants argue that the district court abused its discretion when it did not find good cause for setting aside the entry of default under either Rule 60(b)(1) or (6). Appellants contend that the failure to file an answer was done on the basis of mistake, inadvertence, or excusable neglect because of Hatch's reasonable belief that he had been granted an extension. Failing a finding under Rule 60(b)(1), Appellants urge us to consider the cireumstances of this case as a reason for justifying relief under the catchall provision of 60(b)(6).

[T13] Assuming Hatch believed that he had an extension; the question is whether that belief is sufficient to constitute a mistake, inadvertence, or excusable neglect pursuant to Rule 60(b). We conclude that it is not, because Hateh's actions under the circumstances were not reasonable. An out-of-state defendant must serve an answer within thirty days after the service of the summons and complaint. W.R.C.P. 12(@). The Uniform Rules for District Courts specifically delineate the cireamstances when time limits may be extended or modified:

Rule 202. Time limits.
Except as may be permitted by the Wyoming Rules of Civil Procedure and the Wyoming Rules of Criminal Procedure, time limits permitted or required by rules or court order may not be extended or modified by agreement of counsel, but only by order.

[114] In this case, Hatch assumed from his conversation with DeFazio that he had an open extension of time for filing an answer. Hatch made this assumption absent an unequivocal verbal or written confirmation from DeFazio and in the face of the explicit requirements of the Wyoming Rules of Civil Procedure and the Uniform Rules for District Courts. Ignorance of the law or rules of procedure does not justify relief from an entry of default. Edward H. Bohlin Company, Inc. v. Banning Company, Inc., 6 F.3d 350, 357 (5th Cir.1993) ("Gross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief"); see also, 11 Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2858 at 280 (1995); 12 Moore's Federal Practice § (Matthew Bender 8rd ed.1999). Appellants have failed to direct us to any extenuating cireumstances, such as fraud or inducement by DeFazio, that would justify Hateh's actions. The concept of time limitations for filing pleadings with the court is a fairly basic one of legal practice. Hatch's reliance on his belief in an open-ended extension was simply not reasonable. See, e.g., United States v. Proceeds of Sale of 3,888 Pounds Atlantic Sea Scallops, 857 F.2d 46, 49 (1st Cir.1988) (district court did not abuse discretion in not setting aside a default judgment because counsel's reliance on local attorney's advice that there was no specific date for filing answer was unreasonable).

Appellants also raise a claim that the cireumstances of this case justify relief under Rule 60(b)(6). We have described the cireumstances when relief may be justified under this provision:

Considering the "catch all" clause of Rule 60(b)(6) that a judgment may be set aside for "any other reason justifying relief," we note that this means shall be utilized "only if extraordinary cireum-stances are present." Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990); See also, Picco v. Global Marine Drilling Co., 900 F.2d 846, 851 (6th Cir. 1990). In analysis of this clause, we have held that where an attorney was grossly negligent in his representation, the litigant was not necessarily entitled to relief under 60(b)(6). [Hochhalter v. Great Western Enterprises, Inc., 708 P.2d 666, 669-670 (Wyo.1985).]

Vanasse, 847 P.2d at 998. In Hochhalter, the defendants' attorney represented that he was actively representing their interests. In truth, however, the attorney was lying to his clients and had failed to file an answer. We held that "[A] litigant is not necessarily entitled to relief under Rule 60(b)(6) solely because his counsel was grossly negligent. To hold otherwise would be inconsistent with holding each party 'bound by the acts of his lawyer-agent.'" 708 P.2d at 670. Here, Appellants have failed to demonstrate any extraordinary circumstances justifying relief under Rule 60(b)(6). In Hochhalter, we suggested that proof that an attorney's gross negligence was the product of personal or psychological problems could constitute an extraordinary circumstance. Absent such a demonstration, a district court does not abuse its discretion in denying a request for relief under Rule 60(b)(6). 708 P.2d at 670. There certainly was no such allegation or demonstration in this case and, accordingly, we do not find an abuse of discretion in the district court's denial of relief under Rule 60(b)(6).

[116] Failing a justification for relief under Rule 60(b), Appellants argue that they were, nevertheless, entitled to notice of DBM's motion for default under W.R.C.P. 55(b)(2). That rule requires notice when a party has appeared in a proceeding:

If the party against whom a judgment by default is sought has appeared in the action the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.

Appellants claim that they "appeared" in this action by evidencing an intent to defend through two ways: (1) Hateh's conversation with DeFazio regarding a possible extension of time to file an answer; and (2) its appearance and participation in the related proceedings brought by Jackson Lumber.

[117] We have defined what Rule 55(b)(2) means by "appearance" in broad terms: Vanasse, 847 P.2d at 1001. Accordingly, a party has appeared in an action when they have made some submittal or presentation to the court,. We have also recognized what is essentially a constructive appearance when the contacts between the parties clearly evidence an intent to defend. Such an approach is consistent with the majority of jurisdictions, which have adopted a broad definition of appearance under Rule 55(b)(2). See 10 Moore's Federal Practice § 55.21[2][bIl[il (Matthew Bender 3rd ed.1999); and 46 Am. Jur.2d Judgments § 300 at 614-616 (1994); but see Zuelzke Tool & Engineering Company, Inc. v. Anderson Die Castings, Inc., 925 F.2d 226, 230-231 (7th Cir.1991) (specifically rejecting a broad definition of "appearance" under Rule 55(b)(2) in favor of a strict definition requiring an actual submission or presentation to the district court).

On the issue of what constitutes an appearance, we have said, "An appearance in an action involves some submission or presentation to the court by which a party shows his intention to submit himself to the jurisdiction of the court." Hochhalter, 708 P.2d at 671 (quoting U.S. Aviation, 664 P.2d at 124). A party "will be deemed to have appeared * * * when contacts between the parties clearly demonstrate an intent to defend." Hochhalter, 708 P.2d at 672. See also, Sanford v. Arjay Oil Co., 686 P.2d 566, 571 (Wyo.1984).

[T18] There is no question here that Appellants did not make any submittal or presentation to the district court. The issue before us then is whether the contacts between Appellants and DBM clearly evidenced an intent by Appellants to defend. What constitutes a constructive appearance under Rule 55(b)(2) is dependent upon the cireumstances of each case. In this case, Appellants' counsel made a single phone call to DBM's attorney requesting an extension of time. There is no other activity attributable to Appellants or their counsel in this action that could be deemed evidence of an intent to defend. To the contrary, Appellants failed to respond to the complaint in any manner. Appellants did not respond to the correspondence from DBM by either signing and returning the acceptance of service or providing an enumeration of their objections to the billing. We hold that a party does not appear in a case when it does no more than make a telephone call requesting an extension of time to file an answer. Simply making a phone call requesting an extension of the answer time without taking any other action is more indicative of a desire to delay or obfuscate than it is to defend.

[119] Appellants also argue that their appearance and participation in the related proceedings initiated by Jackson Lumber is evidence of an intent to defend this action. Appellants cite Press v. Forest Laboratories, Inc., 45 F.R.D. 354 (S.D.N.Y.1968) in support of their argument. In that case, the plaintiff unsuccessfully sought to amend his complaint to add other defendants. The plaintiff then filed a second action while the first was still pending. The second complaint was identical to the first except that it added the defendant's attorney as a party and raised additional allegations of unethical conduct and libel against the attorney. Defendant's attorney, who had responded to the first complaint, did not respond to the second complaint; instead, he commenced a proceeding against plaintiff's attorney before the state bar association. A default judgment was ultimately entered against the defendants for their failure to respond to the second complaint. On the defendant's motion, the district court set aside the default judgment. The court held that the two actions were essentially one and the same because the dispute in the second arose out of the activities surrounding the first. Therefore, the court held that the contacts in the first action constituted an appearance in the second action. 45 F.R.D. at 856-57. Appellants claim that an almost identical cireum-stance exists in this case. Appellants point out that they served an answer on DBM in the Jackson Lumber proceeding three days before DBM moved for an entry of default in this case. They also note it is undisputed that phone conversations and correspondence took place in this case in the time period before an answer was due. In addition, Appellants allege that Hatch mentioned possible consolidation of the two actions. According to Appellants, these facts and cireumstances indicate an intent to defend and the right to notice under Rule 55(b)(2).

[$20] The Press case is clearly distinguishable on its facts from the situation before us in this case. The Tenth Cireuit has described the holding in Press:

That case stands for the proposition that where two actions have been filed and plaintiff knows that counsel who appeared for the defendants in the first action also represents the same defendants in the see-ond action where no formal appearance is made, by legal construction, there is a technical appearance under Rule 55(b)(@) requiring notice.

Gomes v. Williams, 420 F.2d 1864, 1367-68 (10th Cir.1970). The distinguishable element between this case and Press is that Appellants were not represented by the same counsel in both actions at the time the motion for entry of default was filed. In the Jackson Lumber action, Appellants had retained local counsel after their request for an extension was rejected. In this case, Appellants did not hire local counsel after the complaint was filed. Instead, Hatch represented Appellants' interest. Eventually, Appellants hired the same local law firm to represent them in this case after the entry of default and the default judgment had been entered. Simply appearing in a related action is not necessarily an indication of an intent to defend. A defendant must take some steps to defend itself, Here, Appellants did not hire a local firm to represent themselves in this case although they knew Hatch was not licensed to practice in this state. Appellants' actions in this case and in the companion case are not sufficient to constitute an appearance under Rule 55(b)(2).

[121] Finally, Appellants raise a public policy argument. There are two competing policy considerations that guide a decision to set aside a default judgment. Vanasse, 847 P.2d at 997. "The justice system and litigants have an interest in the finality of judgment and: efficiency in litigation. However, this Court has long recognized that 'default judgments are not favored in the law' and '[i}t is preferable that cases be tried on their merits.'" Id. (quoting Carlson v. Carlson, 836 P.2d 297, 801 (Wyo.1992)). Appellants contend that the policy consideration favoring the determination of cases on their merits should prevail here because the related controversy filed by Jackson Lumber is still pending. Appellants argue that deciding both of these cases together would be more likely to promote judicial efficiency and finality of judgments than would affirming the entry of default and default judgment.

[122] In addressing the policy considerations underlying entries of default and default judgments we have said:

Traditionally, default judgments were strongly disfavored; however, 'this court has moved away from the traditional pOSition * * */ The old formulas-a harsh sanction, drastic, should be imposed only as a last resort, for example when Other) less drastic remedies prove unavailing, ete.-are still at times intoned. The new practice, however, is different. The entry of a default judgment is becoming * * * a common sanction for late filings by defendants * * *.

Vanasse, 847 P.2d at 1000 (quoting Matter of State Exchange Finance Company, 896 F.2d 1104, 1106 (7th Cir.1990)). In regard to a . parties' failure to answer, we have said:

2, . [A] workable system of justice requires that litigants not be free to appear at their pleasure. We therefore must hold parties and their attorneys to a reasonably high standard of diligence in observing the courts' rules of procedure. The threat of judgment by default serves as an incentive to meet this standard.

Vanasse, 847 P.2d at 1000 (quoting Cessna Finance Corporation v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444-45 (10th Cir.1983)) (citations omitted). With that background, we answer Appellants argument by quoting the Supreme Court of Ohio:

A defendant's right to foree a plaintiff to prove his or her claim depends upon the defendant's compliance with the Civil Rules and the timely filing of an answer to the complaint. Otherwise, the sance-tions for noncompliance would lose their deterrent effect. Even though we recognize that it is preferable to hear a case upon its merits, the rules of procedure must be applied consistently, and [Appellants'] noncompliance cannot be overlooked. * * * However hurried a court may be in its efforts to reach the merits of a controYersy, the integrity of PrOCE dural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment.

Davis v. Immediate Medical Services, Inc., 80 Ohio St.3d 10, 684 N.E.2d 292, 296-97 (Ohio 1997) (citations omitted).

Default Judgment

[123] The district court entered a qefaylt judgment for $299,836.19, the amount requested for damages in DBM's complaint. we conclude that the district court erred in finding the damages liquidated and reverse p, default judgment.

[124] W.R.CP. 55(b)(@2) provides, in part:

If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to deter-Ane the amount of damages or to h stab-lish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by statute.

The court's decision whether to hold a hearing is within its discretion:

The seope of discretion afforded the trial court under the rule, however, does not extend to the entry of a default judgment where the damages are not liquidated or articulated with certainty. In Adel [v. Parkhurst 1, 681 P.2d [886] at 892 [Wyo. 1984], we said:
The burden, however, is upon those seeking more than mere nominal damages to prove their damages. The requirement of Rule 55(b)(2), W.R.C.P., of a hearing with respect to damages which are not liquidated is consistent with the rule of those cases. The default permitted by a defendant does not concede the amount demanded for unliquidated damages.
(Citations omitted). See also Midway Oil Corporation v. Guess, 714 P.2d 3839, 346 (Wyo.1986) (quoting in part and applying the above principle).

Halberstam v. Cokeley, 872 P.2d 109, 112-13 (Wyo.1994). "Damages are liquidated when they are certain or, by computation, made certain." Id. It is an abuse of discretion for a court to enter a default judgment on damages that are unliquidated. Id.; see also, Midway Oil Corporation v. Guess, 714 P.2d 339, 345 (Wyo.1986).

[125] The burden to prove the amount of damages was on DBM. Damages may be established by affidavit or testimony. Whitney, 892 P.2d at 795, Midway Oil, 714 P.2d at 345-47; Halberstam, 872 P.2d at 118. In this case, DBM submitted an affidavit from its attorney, DeFazio. With respect to damages, the affidavit states: "This complaint requested relief in a sum certain amount of $299,836.19 (Two Hundred Ninety Nine Thousand, Eight Hundred Thirty Six Dollars and 19/100)." DBM's president also filed an affidavit, which stated: "I provided Mr. DeFazio with invoices which justify my claim for $299,886.19." Similarly, in his testimony, the president referenced the total amount of damages and indicated he had sent itemized invoices to Appellants. This is the only evidence produced by DBM in support of its damages claim. DBM did not offer an itemization of the project costs, the invoices referenced by the president or any evidence of any kind to support the claim of damages. A bald assertion of total damages without supporting evidence is insufficient to establish that damages were liquidated. Halberstam, 872 P.2d at 113. Likewise, DBM's statement in the complaint and in their attorney's affidavit is insufficient to establish damages because they are merely unsupported declarations. The default judgment and the lien foreclosure based on the monetary damage award are, therefore, reversed and the matter is remanded for further proceedings.

[126] However, having upheld the default judgment, we note the only matter for consideration on remand is the actual cost of the work performed by DBM. Appellants are foreclosed from arguing any defenses to the claims of breach of contract, unjust enrichment, or lien foreclosure to defeat the claim for damages.

CONCLUSION

[127] The district court did not abuse its discretion when it declined to set aside the entry of default. The default judgment, however, is reversed and remanded for further proceedings for DBM's failure to prove damages.

      . In the Jackson Lumber case, Hatch made a similar request but was rebuffed by Jackson Lumber's counsel. In response, Appellants hired a local Jackson law firm to represent them in that case.