IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 38

OCTOBER TERM, A.D. 2015

March 15, 2016

WENDELLYN KAY DANE,

Appellant

(Plaintiff),

v.

KRIS ALAN DANE,

Appellee

(Defendant).

S-15-0171

Appeal from the District Court of Sheridan County

The Honorable William J. Edelman, Judge 

Representing Appellant:

James P. Castberg, Castberg Law Office, Sheridan, Wyoming

Representing Appellee:

Stacy M. Kirven, Barney & Graham, LLC, Sheridan, Wyoming

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

DAVIS, Justice.

[¶1] After slightly more than three years of marriage, Wendellyn Dane (Wife) filed for 

divorce from Kris Dane (Husband). She appeals from the decree entered in that case. 

We affirm.

ISSUES

[¶2] Wife identifies three issues, which we condense into two and restate as follows:

I. Did the district court abuse its discretion in denying Wife’s 

motion to amend her complaint to add a promissory estoppel 

claim, and in failing to enforce the alleged promise in its 

distribution of the couple’s property?

II. Did the district court abuse its discretion by dividing the 

marital property as it did?

FACTS

[¶3] Husband and Wife first met in late 2008 when he decided to sell his condominium 

in Naples, Florida. Wife was a real estate agent designated to handle the resale of units in 

the condominium project of which his property was a part. At the time, Husband was 

approximately 61 years old, and Wife was 55. 

[¶4] After their initial contact, they did not see each other again until April of 2009,

when Wife telephoned Husband to ask if she could rent a room in his condo. She had 

sold her own home and was planning to leave her boyfriend, with whom she was sharing 

an apartment. Husband agreed to rent her a furnished room and a bathroom for $500 per 

month.1 

[¶5] Within two months their relationship became romantic, and Wife no longer paid 

rent or contributed to household expenses. Over a period of two years, Husband took her 

golfing and on trips, and he paid approximately $8,000 in relation to her arrest for driving 

while intoxicated after drinking wine with a girlfriend one afternoon. 

[¶6] During those two years, Husband began to consider retiring, winding down his 

day-to-day involvement in businesses in which he had an interest, and moving to a cooler 

area of the country. He first concentrated on mountainous areas in the eastern United 

 

1 Although she had approximately thirty years of experience in the real estate business, the national home 

financing crisis of that period was not kind to Wife. The costs of her business began to exceed her 

income, which she supplemented at points with a second job and, ultimately, with unemployment 

compensation. 
2

States, and he took Wife on a trip to explore a variety of options “up and down the east 

coast.” He liked several locations, but she did not, and they thereafter shifted their focus 

to states in the Rocky Mountains. Their research and the recommendations of others 

eventually led them to take a trip to Sheridan, Wyoming in February of 2011. 

[¶7] During that trip, Husband made an offer on a house. In early April, the couple 

moved to Sheridan, and Husband completed the purchase of that home. A month later, 

he closed on the sale of his Florida condominium. On July 9, 2011, the couple wed. 

[¶8] Husband made the down payment on the Sheridan home from his personal funds, 

and because he and Wife were not yet married at the time, titled it only in his name. It 

was furnished almost entirely with items he had purchased for his condominium, and he 

made all the mortgage payments during the marriage. Husband also paid all household 

expenses and for all vehicles, because Wife brought few assets to the marriage and 

worked only sporadically at a real estate office in Sheridan.2 Husband’s income came 

from Social Security retirement benefits, from distributions related to his interests in two 

Florida business entities, and from a structured stock repurchase involving one of those 

entities.3 

[¶9] On September 5, 2014, after slightly more than three years of marriage, Husband 

told Wife he wanted a divorce. Four days later she sued him for divorce. On September 

15, she filed a motion for temporary support, for payment of her attorney fees and 

prospective expert witness fees, and for temporary possession of their house and a 2013 

Ford truck. Husband answered the complaint on September 24. 

[¶10] The district court scheduled a pretrial conference for February 26, 2015, and set 

trial for March 4, 2015. On December 18, 2014, it entered an order on Wife’s motion for 

temporary support. Wife was granted temporary possession of the marital home and the 

pickup truck. Husband was ordered to make all mortgage and loan payments on that 

property, and to pay all other expenses relating to them, except for fuel for the pickup 

truck. The court also required Husband to continue to pay Wife’s health insurance 

premiums and $2,000 per month in temporary support starting on January 1, 2015. 

However, it denied Wife’s request for payment of her attorney fees and held 

consideration of her request for payment of expert witness expenses in abeyance until 

after trial. 

 

2 Husband procured her a second credit card on his Visa account and opened a checking account for her 

as well. If she needed funds, he would write her a check from his separate account for her to deposit in 

her own. 

3 The district court concluded that Husband regularly received approximately $2,500 per month from 

rents received by Coastal Building Partnership and approximately $5,000 per month from a “buy back” 

by Maritime Venture I, Inc. 
3

[¶11] On January 21, 2015, Wife filed a motion to amend her complaint pursuant to 

W.R.C.P. 15 so as to add a cause of action for promissory estoppel. She claimed that, in 

February of 2011, Husband “told [her] if [she] moved to Wyoming with him and [sic] 

that he would take care of [her] the rest of [her] life, and that [she] wouldn’t have to work 

because [they] would have lots of money.” 

[¶12] At the February 12 hearing on the motion to amend, the district court found that 

Wife possessed all the information needed to raise the promissory estoppel claim no later 

than six days after filing her original complaint, and that allowing the amendment a little 

over two weeks prior to the trial date would unduly delay the trial. It also found that such

a delay would prejudicially extend Husband’s obligations under the court’s temporary 

support order. However, it also ruled that it could and would consider the circumstances 

of the parties’ marriage—including the alleged promise—in equitably dividing their 

property. The court therefore concluded that justice did not require leave to amend the 

complaint, and it denied Wife’s motion. It entered its order to that effect on March 4, 

2015. 

[¶13] On April 23, 2015, the district court entered its “Findings of Fact, Conclusions of 

Law, and Decree of Divorce.” To briefly summarize that 21-page document, the court 

found it significant that the parties had a relatively brief marriage, that Husband had 

retired nearly a year before first visiting Wyoming, that he had acquired the great 

majority of the assets whose benefits the parties enjoyed long before their marriage, and 

that Wife had not contributed to the value of those assets. Moreover, from about the time 

she moved into Husband’s Florida condominium through trial, Wife had only negligible 

earnings and lived almost entirely on Husband’s income. 

[¶14] As for the alleged promise she described in the motion to amend her complaint, 

the court appears to have found Husband’s version of his statements more credible. He 

testified to several conversations relating to a move to Wyoming. At one point, Wife said 

she would go only if they were engaged. In response, Husband bought her an 

engagement ring. Another time she expressed concern about whether they could afford 

to live in Wyoming. He replied that it would be cheaper to live in Wyoming than in 

Florida, and that they would have enough money so that she would not need to work 

during their marriage. 

[¶15] The district court distributed the couple’s property and property-related 

obligations to the party who brought it into the marriage, if it was acquired before they 

married. If an asset was purchased during the marriage, it awarded it to the party whose 

assets were used to purchase it. As a result, the court awarded the majority of the 

property to Husband, while allowing Wife to keep $22,800 worth of jewelry Husband 

had given her, plus other miscellaneous items. It also awarded her an additional $45,000 

“equalization payment.” 
4

[¶16] Wife timely perfected this appeal. 

DISCUSSION

Amendment of Complaint

[¶17] Wife’s motion to amend her complaint was filed long after Husband filed his 

answer. Accordingly, absent Husband’s consent, W.R.C.P. 15 permitted the amendment 

only upon leave of the district court, which is to be “freely given when justice so 

requires.” W.R.C.P. 15(a). This Court has read those last four words as committing the 

decision to allow an amendment to a trial court’s discretion. That kind of decision is 

subject to reversal only for an abuse of that discretion, and a court may properly deny 

leave to amend if amendment would cause undue delay, or if it would unduly prejudice 

the defendant. Foxley & Co. v. Ellis, 2009 WY 16, ¶ 32, 201 P.3d 425, 433 (Wyo. 2009).

[¶18] These two factors were paramount in the district court’s decision to deny the 

motion. Wife filed her complaint on September 9, 2014, and on September 15, nine days 

prior to the filing of Husband’s answer, she filed an affidavit in conjunction with her 

motion for temporary support, in which she set out the facts forming the basis of the

motion to amend her complaint. However, she did not seek leave to amend the complaint 

to add a promissory estoppel claim until more than four months later, after the parties had 

completed discovery and six weeks prior to trial. We note that although the existence of 

the promise was disclosed earlier, it was in the context of a claim for temporary support 

in anticipation of marital dissolution, and the promissory estoppel claim involved 

elements of proof beyond those required in a divorce case. 

[¶19] The court concluded that granting Wife’s motion would likely require a 

continuance of the trial date, which would extend Husband’s obligation to provide 

temporary support of $2,000 per month, and to pay monthly house, truck, and other 

payments, and that doing so would unduly prejudice him. The court also concluded that 

amendment would delay disposition of the case, and that it could take into account any 

premarital promises made by Husband when determining how to equitably divide the 

marital estate. 

[¶20] Those conclusions are reasonable, and we can discern no abuse of discretion in the 

district court’s ruling. In addition, we do not see how Wife could have been prejudiced 

by that ruling when the court—true to its word—heard and considered evidence relating 

to any premarital promises allegedly made by Husband at the divorce trial. 

[¶21] It might be sufficient to conclude our discussion of this issue without further 

comment. However, there are two statutes which potentially bore on this issue, and we 

are reluctant to completely ignore the legislature’s pronouncements, even though the 

parties did not raise them.
5

[¶22] First of all, the premarital promises allegedly made and Wife’s claim for relief 

raise the prospect that her claim of promissory estoppel was barred by Wyoming’s “Heart 

Balm” Act, Wyo. Stat. Ann. § 1-23-101. That statute provides as follows:

The rights of action to recover money as damage for 

the alienation of affections, criminal conversation, seduction 

or breach of contract to marry are abolished. No act done in 

this state shall give rise, either in or out of this state, to any of 

the rights of action abolished. No contract to marry made in 

this state shall give rise, either in or out of this state, to any 

right of action for the breach thereof.

Wyo. Stat. Ann. § 1-23-101 (LexisNexis 2015).

[¶23] Statutes such as this bar a variety of common law claims based upon promises to 

enter into romantic, familial relationships. Their overriding purpose is to advance the 

precept that people should not be bound by certain agreements relating to those 

relationships, and to eliminate emotionally charged abuses often associated with suits for 

damages for breach of a promise to marry. 12 Am. Jur. 2d Breach of Marriage Promise

§ 12 (February 2016 update). Those statutes are applied broadly to bar actions based on 

allegations of economic loss inextricably bound to promises to marry. Id. § 14; see also 

Boyd v. Boyd, 39 Cal. Rptr. 400, 402-04 (Cal. Ct. App. 1964). The California court held 

in Boyd that a promise to provide support is an implicit incident to every marital 

relationship, but that the California Heart Balm statute (which closely parallels the 

Wyoming statute) prohibits a suit for breach of that promise even when, as here, the 

promise to marry was fulfilled. The court also held that the injured party nevertheless 

retains a wholly adequate alternative remedy by way of suit for divorce. Id.

[¶24] The district judge may therefore have been more prescient than the parties realized 

when he held, in substance, that the putative promises Husband made should be taken 

into account in an equitable division of marital property under Wyo. Stat. Ann. § 20-2-

114 (LexisNexis 2015). A court need not grant leave to amend if to do so would clearly 

be futile, as it would be if the statute barred the promissory estoppel claim. 6 Charles 

Alan Wright, et al., Federal Practice and Procedure, Civil § 1487 (3d ed., April 2015 

update). 

[¶25] The same can be said for the prospect that Wife’s claim may have been barred by 

the statute of frauds, Wyo. Stat. Ann. § 1-23-105(a)(iii) (LexisNexis 2015). That statute 

renders void every “agreement, promise or undertaking made upon consideration of 
6

marriage, except mutual promise to marry”4unless the agreement, or some note or 

memorandum of the agreement, is in writing and signed by the party against whom it is 

to be enforced.

[¶26] Because Wife’s claim was based on a promise of support that allegedly extended 

beyond the dissolution of a promised marriage, one can scarcely avoid the conclusion that 

she was describing a sort of oral prenuptial agreement, which could have been

unenforceable under the statute of frauds. No different result should come from the fact 

that Wife has marketed her contract claim as an equitable one of promissory estoppel.

[¶27] This Court has long recognized that certain equitable exceptions to the statute of 

frauds exist. However, our policy has been to restrict, rather than to expand the reach of 

those exceptions, even to the extent that hardships may result from that practice. Davis v. 

Davis, 855 P.2d 342, 346 (Wyo. 1993). Thus, we have held that a theory of promissory 

estoppel can be invoked to overcome the statute of frauds only when such is necessary to 

avoid a fraud that results in unconscionable injury. Id. at 349. That is, promissory 

estoppel cannot serve as an exception to the statute of frauds unless, at a minimum, the 

promissee both pleads and proves a fraudulent misrepresentation. Kincheloe v. Milatzo, 

678 P.2d 855, 861-62 (Wyo. 1984).

[¶28] Although we acknowledge these legislative pronouncements as they relate to this 

appeal, we will address them no further. Neither party raised them, and we are without 

the benefit of briefing. Husband did not raise a statute of frauds defense to Wife’s claim 

below, and accordingly, that issue would be deemed waived in any event. See Bereman 

v. Bereman, 645 P.2d 1155, 1159 (Wyo. 1982). That said, we affirm because the district 

court did not abuse its discretion in denying Wife’s motion for leave to amend.

Distribution of Property

[¶29] The disposition of marital assets in a divorce is governed by Wyo. Stat. Ann. § 20-

2-114, which requires a district court to distribute them in a just and equitable manner. 

The court should have “regard for the respective merits of the parties and the condition in 

which they will be left by the divorce, the party through whom the property was acquired 

and the burdens imposed upon the property for the benefit of either party and children.” 

Wyo. Stat. Ann. § 20-2-114(a).

 

4 The “mutual promise” exception refers to a situation in which parties exchange promises to marry and 

each promise is the exclusive consideration for the other. An agreement falls within the statute of frauds 

if marriage is only part of the consideration or inducement given by one party in exchange for the promise 

of the other party. Thus, the statute covers promises relating to the care and support of the other party 

after marriage. W.M. Moldoff, Annotation, What constitutes promise made in or upon consideration of 

marriage within statute of frauds, 75 A.L.R.2d 633, §§ 4[a], 6, 9 (1961 database updated weekly).
7

[¶30] This Court reviews those decisions for an abuse of the district court’s considerable 

discretion, and we will not find such an abuse unless the property division appears so 

unfair and inequitable that it would shock the conscience of reasonable minds. Williams 

v. Williams, 2016 WY 21, ¶ 34, ___ P.3d ___ (Wyo. 2016); Guy-Thomas v. Thomas, 

2015 WY 35, ¶ 15, 344 P.3d 782, 786 (Wyo. 2015); Kummerfeld v. Kummerfeld, 2013 

WY 112, ¶ 7, 309 P.3d 822, 824 (Wyo. 2013). It is appropriate to identify the party 

through whom property was acquired and award it to that party regardless of whether that 

results in an equal division of marital assets. As in all other regards, we afford the 

prevailing party every evidentiary inference favorable to the district court’s decision, 

while omitting any consideration of the unsuccessful party’s evidence. Williams, ¶ 34, 

___ P.3d at ___; Guy-Thomas, ¶¶ 15-16, 344 P.3d at 786-87; Kummerfeld, ¶¶ 9-10, 309 

P.3d at 825.

[¶31] The district court may also properly consider the short duration of a marriage as 

one measure of how the marriage affected any increase in the value of property brought 

to the marriage by one party. See Williams, ¶ 39, ___ P.3d at ___ (five-year marriage). 

Furthermore, in evaluating the position in which the parties will be left after the divorce, 

it is necessary to consider not only to whom property will be awarded, but also who will 

be responsible for any debt relating to that property. Id. at ¶ 40, ___ P.3d at ___; see also 

Guy-Thomas, ¶ 17, 344 P.3d at 787.

[¶32] The record contains more than adequate support for the district court’s finding that 

nearly all the property and income held during the marriage came from assets Husband 

acquired long before the parties’ nuptials in Wyoming and his retirement nearly a year 

before. From the time she moved into Husband’s Florida condominium and continuing 

through trial, Wife had only negligible earnings, owned no property except for some 

household items, and lived almost entirely on Husband’s resources. She made next to no 

economic contributions to the marriage or to the value of marital assets during the threeyear marriage. Moreover, given the difference in the cost of living between Florida and 

Wyoming, and the effect of their respective housing markets on her prospects for a 

successful real estate practice, her economic position after divorce is certainly no worse 

than the one she faced before meeting Husband, particularly given the gifts of jewelry 

and the $45,000 “equalization payment” the court awarded her.

[¶33] The district court’s distribution of the couple’s property to the party who brought 

it to the marriage, or whose premarital assets were used to purchase property acquired 

after they married, resulted in Husband receiving most of the marital property. We have 

held that an equitable distribution of property is as likely as not to be unequal. Walters v. 

Walters, 2011 WY 41, ¶ 6, 249 P.3d 214, 221 (Wyo. 2011) (citing Carlton v. Carlton, 

997 P.2d 1028, 1032 (Wyo. 2000)). Beyond that, the decree also encumbered Husband 

with all the debt and obligations related to the property he received. In light of these 

circumstances and the authority referred to above, we cannot say the court’s property 
8

division was so unfair, inequitable, or unreasonable as to shock the conscience. It 

therefore did not abuse its discretion.

CONCLUSION

[¶34] The district court did not abuse its discretion in denying Wife’s motion to amend 

her complaint, or in dividing the marital property as it did. Accordingly, the decree of 

divorce is affirmed in all respects.