IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 109

APRIL TERM, A.D. 2015

August 18, 2015

JASON WILLIAM STEPHEN,

Appellant

(Defendant),

v.

AMY JO STEPHEN,

Appellee

(Plaintiff).

S-14-0292

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Laura J. Jackson of Jackson & Ojeda, LLC, Cheyenne, Wyoming.

Representing Appellee:

Douglas W. Bailey of Bailey, Stock & Harmon, P.C., Cheyenne, Wyoming.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

* Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5, 

§ 5 of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015), she was 

reassigned to act on this matter on August 4, 2015.

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 typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
1

KITE, Justice.

[¶1] Jason William Stephen (Husband) appeals from the property division portion of a 

divorce decree, claiming the district court abused its discretion in valuing his interest in 

the family business and requiring him to make a lump sum payment to Amy Jo Stephen 

(Wife). We affirm.

ISSUES

[¶2] Husband contends the district court abused its discretion by:

1. Requiring him to make a lump sum payment to Wife rather than devising a 

plan for payment over time;

2. Using a capitalization of earnings method to value the family business 

without first finding the business is likely to survive the lump sum payment; and

3. Failing to apply a minority discount after Wife’s expert witness testified the 

discount was appropriate.

[¶3] Wife asserts the district court did not abuse its discretion because: 

1. A lump sum payment was reasonable, given Husband’s income and the

success of the family business; 

2. Although a finding of survivability is not required, the district court 

nevertheless found the family business would continue to be successful when it ordered 

the lump sum payment; and

3. Wife’s expert testified a minority discount was not appropriate because the 

family business was not going to be sold.

FACTS

[¶4] Husband and Wife were married in 1997 in Laramie, Wyoming. They had two 

children. During the marriage, Husband went into business with his father to form 

Gateway Construction, Inc., a residential construction company. While Husband worked 

long hours getting the business up and running, Wife was primarily a stay at home 

mother, but occasionally did some work for the business without pay. In 2011, Wife filed 

for divorce in Laramie County, Wyoming where they were living at the time. The parties 

reached a settlement agreement as to child custody and visitation but were unable to 

agree concerning child support and the division of property. Those matters were tried in 

the district court. 
2

[¶5] At trial, the primary issues in dispute were Husband’s net income for purposes of 

calculating child support and the value of the family business for purposes of dividing the 

marital property. Testimony at trial revealed that Husband receives a guaranteed 

payment of $2,000 per week ($104,000 per year) from the business. The business also 

provides him with health insurance, a gym membership, a vehicle, gas (at least as 

necessary for work), and a cell phone. Husband and Wife testified that Husband draws 

funds to pay his income tax from the business’s capital account separate from the 

guaranteed weekly payments.1 Husband also has routinely used funds from the capital 

account to pay for various other expenses, including the $107,000 he incurred in legal

fees and costs in this matter prior to the appeal. The district court calculated Husband’s 

net income for child support purposes at $11,186 per month and Husband does not 

dispute that calculation on appeal. After separating from Husband, Wife went to work as 

an elementary school teacher at a net salary of $3,231.00 per month. As part of the 

property distribution in the divorce, Wife sought payment for a portion of the value of the 

business to compensate her for the contributions she made to its success by staying home, 

maintaining the household, raising the parties’ children and helping out with the business 

from time to time. 

[¶6] Both parties presented expert testimony concerning the value of the business in 

which, at the time of trial, Husband owned a 60% interest and his father owned a 40% 

interest. Wife’s expert used several methods to value the company, including a 

capitalization of earnings approach, which resulted in a value of $639,000. Husband’s 

expert also used several methods to value the company, including a capitalization of 

earnings approach with a marketability discount, which resulted in a value of $61,000. 

[¶7] In its decision letter, the district court accepted Wife’s expert witness’s valuation of 

the company and calculated Husband’s 60% interest of that amount at $383,400. The 

court ordered Husband to pay one-half that amount, $191,700, to Wife. Combined with 

amounts the district court ordered him to pay for medical expenses and attorney fees 

Wife had incurred, which are not disputed on appeal, Husband was to pay Wife a total of 

$224,822.08. 

[¶8] Addressing the method or schedule of payments, the district court said:

In this case the parties could not agree on [the] value 

of the principal asset and thus never had an opportunity to 

negotiate the circumstances of payment to the wife of 

amounts set over to her. Leaving such a question open at the 

 

1 This testimony was disputed. Husband’s father testified that the operating income from the business is 

distributed to the owners and the owners pay the taxes. The question of how the taxes are paid does not 

affect our resolution of the issues on appeal. 
3

end of a divorce may be inadvisable but it occurs to this Court 

that the parties should have an opportunity to discuss this 

element to best suit their situation. The range, from 

immediate payment of all debts and amounts owed, to 

monthly or yearly payments, to the transfer of ownership 

interests makes it a difficult proposition based on the limited 

evidence in this regard.

Difficult or not the Court is prepared to rule in this 

regard, but with the passage of time, and the clearing up of 

uncertainties, it seems reasonable to give the parties this 

opportunity. The amounts and divisions are as ordered, but 

the Court will not set a repayment schedule unless the parties 

notify the court of their inability to agree. The Court will 

expect both agreement and presentation of the order or notice 

of no agreement within twenty (20) days. If notice is given of 

an inability to agree the Court will enter its own decision on 

the payment structure immediately, without hearing, and 

direct preparation of the final orders. 

[¶9] Fifty-one days later, Wife notified the district court the parties were unable to agree 

on a payment schedule. The notice was somehow overlooked and five months later the 

district court issued a ruling characterizing as “ill-advised” its decision to give the parties 

an opportunity to negotiate a payment schedule and ordering payment of all amounts due 

to Wife within ninety days of entry of the decree. Pursuant to the district court’s rulings, 

counsel for Wife prepared a proposed decree and sent it to Husband’s counsel for 

approval as to form. Husband objected to the proposed decree. The district court entered 

the proposed decree over Husband’s objections and Husband appealed.

STANDARD OF REVIEW

[¶10] Husband challenges the district court’s valuation of the business and its order 

directing him to make a lump sum payment to wife. 

“We will not disturb a property division in a divorce 

case, except on clear grounds, as the trial court is usually in a 

better position than the appellate court to judge the parties’

needs and the merits of their positions.” Metz v. Metz, 2003 

WY 3, ¶ 6, 61 P.3d 383, 385 (Wyo.2003), citing Paul v. Paul,

616 P.2d 707, 712 (Wyo.1980); Warren v. Warren, 361 P.2d 

525, 526 (Wyo.1961). If our review requires an evaluation of 

the sufficiency of the evidence to support the district court’s 

decision, “we afford to the prevailing party every favorable 

inference while omitting any consideration of evidence 
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presented by the unsuccessful party.” Reavis v. Reavis, 955 

P.2d 428, 431 (Wyo.1998) (citations omitted). When 

interpretation of statutory language is required to resolve an 

issue, our standard of review is de novo. Egan v. Egan, 2010 

WY 164, ¶ 7, 244 P.3d 1045, 1048 (Wyo.2010); Dorr v. 

Smith, Keller & Assoc., 2010 WY 120, ¶ 11, 238 P.3d 549, 

552 (Wyo.2010).

Bagley v. Bagley, 2013 WY 126, ¶ 7, 311 P.3d 141, 143 (Wyo. 2013).

DISCUSSION

[¶11] Husband argues first that the district court abused its discretion when it ordered 

him to pay the $224,822.08 in a lump sum within ninety days of entry of the divorce 

decree rather than devising a plan for him to pay the amount over time. He asserts the

district court abused its discretion in not first determining he has the financial ability to 

make a lump sum payment. He also contends that rather than making a just and equitable 

disposition of the property as it was required to do, the district court effectively gave 

Wife control over the method of payment when it ordered the parties to reach an 

agreement on a payment schedule and, when they failed to agree, ordered him to pay in a 

lump sum. He argues the district court should have set a hearing to determine a just and 

equitable payment method. He contends the lump sum payment method is inequitable 

given Wife’s expert, upon whom the district court relied, valued the business on the basis 

of its anticipated income stream, which necessarily assumes it will continue to operate 

profitably. He contends the business cannot continue to operate if he is required to make 

a lump sum payment. He asks this Court to adopt a rule requiring district courts to make 

a finding that a business will survive before ordering a lump sum payment. Husband also 

points out that Wife testified at trial she was not asking for a lump sum payment; rather, 

she proposed yearly payments over a ten year period.

[¶12] Wife responds that the district court did not abuse its discretion in ordering 

Husband to make a lump sum payment. She asserts an evidentiary hearing has never 

been required before a payment method is established; rather, the only question is 

whether the method is fair. She argues the lump sum payment ordered here is fair given 

Husband’s income, the profitability of his business, and his access to business accounts, 

sources from which to borrow money, and few living expenses. She also contends 

Husband had ample opportunity to present a payment plan, failed to do so and should not 

be heard to complain at this juncture.

[¶13] In Bailey v. Bailey, 954 P.2d 962 (Wyo. 1998), this Court considered the propriety 

of an order requiring the husband to pay wife a lump sum of $323,081.50 in order to 

balance the division of property between the parties. There, husband owned controlling 

interests in two closely held family businesses and was a stock holder in two more 
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closely held family businesses. Id. at 964. The district court accepted husband’s 

accountant’s valuation of his ownership interests, divided the valuation equally between 

the parties, and ordered husband to make a lump sum cash payment to wife within 180 

days from the date of judgment. Id. at 965. Husband challenged the lump sum payment 

on appeal and this Court concluded it appeared “sufficiently unfair” that it constituted an 

abuse of discretion. Id. at 966. We said:

The assets available to the husband and his income are 

directly tied into the family businesses, and they can only be 

sold under binding restrictive sales agreements. We 

acknowledge the possibility that he could raise the cash by 

borrowing money, but there seems to be little point in 

imposing that demand upon him and creating an interest drain 

to an outside entity when a fair payment schedule would 

provide for that interest to be paid to the wife. 

Id. On that basis, we reversed and remanded the case to the district court for a hearing to 

determine an appropriate and reasonable payment schedule. 

[¶14] Two years later, in McLoughlin v. McLoughlin, 996 P.2d 5 (Wyo. 2000), we revisited our holding in Bailey when husband challenged a district court order requiring 

him to make a lump sum payment of $83,000 to wife for her interest in the family ranch. 

Husband argued it was not possible for him to make the payment and still keep the ranch 

because it was heavily mortgaged. Id. at 7. We said:

[Bailey] does not mandate a hearing in every case where a 

property award is made in the form of cash. It does recognize 

that there may be circumstances that do necessitate such a 

hearing. In Bailey, we remanded for a hearing because the 

record demonstrated a possibility that a cash payment might 

be “sufficiently unfair” and work a significant hardship on 

Mr. Bailey. The purpose of the hearing was to determine if 

that was the circumstance faced by Mr. Bailey and, if so, for 

the trial court to fashion an appropriate and reasonable 

payment schedule that afforded Mrs. Bailey interest on the 

lump sum award, as well as the lump sum itself in 

installments. We see few, if any, parallels between the Bailey 

case and this one. Husband’s obligations to pay the 

mortgages on the ranch appear to be optional. He owns 

personal property that can be sold to raise funds to pay at 

least a significant portion of the $83,000. The record is clear 

that he has at least some ability to work and has few, if any 

living expenses. It is also evident from the record that he has 
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at least two sources (Mother and girlfriend) from whom he 

has in the past, and likely could in the future, borrow funds to 

pay off Wife’s interest in the ranch. 

Id.

[¶15] In light of this precedent, the issue for our determination is whether Husband 

demonstrated that a lump sum payment of $224,822.08 might be sufficiently unfair and 

work a significant hardship on him such that it is appropriate to remand the issue for a 

hearing. We conclude that Husband failed to make the required showing. From the 

evidence presented, the district court found that Husband’s net income for child support 

purposes was $11,186.00 per month. The district court further found that over the years 

Husband had “regular access” to the business’s capital account, had “routinely” and 

“without limitation” relied on the account to “fund aspects of his life” and over the years 

had taken as little as $7,000 and as much as $105,000 from the account. The district 

court found no evidence to support the assertion by Husband and his father that 

Husband’s draws from the account had ever been treated as loans. 

[¶16] The district court also found the business had been successful even in lean years, 

had substantial projects underway and had “a future plan to build capital to avoid 

husband’s father from being a regular source of loans or guarantees.” Additionally, the 

district court found

The husband’s income ... will leave him in a strong 

financial condition, and the ruling of the Court as to the 

distribution of some of the value of [the business] will not 

cause his income to decline dramatically or permanently. 

Both partners, father and son, have a long standing 

commitment to this business and will have no reason to alter 

that successful course. Husband’s future holds more of the 

same success after recovery from divorce based on the growth 

of a business that occurred during the marriage.

Thus, contrary to Husband’s assertion, the district court in fact found he had the financial 

ability to pay the amount owed to Wife without adversely affecting him or the business in 

the future. These findings are fully supported by the evidence presented.

[¶17] In addition, the evidence showed that Husband has at least two sources from which 

to borrow money (the business and his father) and as an owner of the business can, with 

his father’s agreement, dispose of non-income producing property, liquidate assets or 

borrow against equity in the business or business property. Husband also has the ability 

to borrow against personal property, including perhaps the $280,000 home that he 

testified he would be moving into a month after the trial. 
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[¶18] Given all of the evidence presented in this case, we conclude the district court did 

not abuse its discretion in ordering Husband to pay the amount owed to wife in a lump 

sum. We note that this proceeding began in September 2011. It is now almost four years 

later and the parties have incurred the expense of two attorneys, three expert witnesses,

2

a 

guardian ad litem, two mediations, a two-day trial and an appeal. Sending this case back 

to the district court for yet another hearing is not in the best interests of the parties, justice 

or judicial economy. The district court fully and fairly considered the issues Husband 

presents on appeal. In the exercise of its discretion, it found Husband has the ability to 

pay; found payment of the amount ordered would not adversely affect him or the business 

in the future; and, while indicating it was prepared to enter an order, gave the parties the 

opportunity to work out a payment schedule. When they could not, the district court 

properly exercised its discretion and, based on the evidence presented and its assessment 

of the witness’s credibility, ordered Husband to pay the amount owed in a lump sum. 

Under the circumstances presented, we decline to further prolong this divorce action by 

remanding for another hearing. We also decline to impose our own payment schedule 

and thereby place Wife in the position of an unsecured creditor of Husband’s business. 

[¶19] Addressing Husband’s second issue, in light of the district court’s express finding 

that neither Husband or the business would be adversely affected by requiring him to pay 

the $224,822.08, we find no abuse of discretion in the district court’s acceptance of the 

capitalization of earnings method for valuing the business. It was the job of the district 

court, not this Court, to consider the experts’ testimony, weigh their credibility in light of 

the other evidence presented and determine which approach best fit the circumstances. 

We also reject Husband’s final claim. Contrary to his assertion, Wife’s expert testified at 

trial that he did not apply a minority discount because it had no application in this 

situation where there was no suggestion the business was going to be sold. 

[¶20] Affirmed. 

 

 

2

In addition to the two expert witnesses who appeared on behalf of the parties at trial, the parties hired 

another expert witness to value the business for purposes of mediation.