IN THE SUPREME COURT, STATE OF WYOMING 

2019 WY 99 

 APRIL TERM, A.D. 2019 

September 27, 2019 

CARLINE ADELLE LEW, 

Appellant 

Plaintiff), 

v. 

FRANK W. LEW, 

Appellee 

(Defendant).

 S-19-0036 

Appeal from the District Court of Sweetwater County 

The Honorable Nena James, Judge 

Representing Appellant: 

Michael Stulken, Stulken Law, PC, Gillette, Wyoming. 

Representing Appellee: 

Elizabeth Greenwood and Inga L. Parsons, of Counsel, Greenwood Law, LLC, 

Pinedale, Wyoming. 

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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

GRAY, Justice.

[¶1] In accordance with the Lews’ 2007 divorce decree, Frank W. Lew (Father) agreed 

to establish college accounts in the amount of $50,000 for each of the parties’ two 

children. Carline Adelle Lew (Mother) managed one account and Father managed the 

other. Mother brings this appeal to challenge an order requiring her to reimburse funds 

she removed from the account she managed. She argues that the district court abused its 

discretion in awarding damages in the amount of $50,000 without receiving evidence on 

the matter, and it erred in awarding post-judgment interest beginning in September 2007. 

She also argues Father is not a real party in interest. We conclude that the district court 

did not abuse its discretion when it ordered Mother to reimburse the account, and Mother 

waived the argument regarding the real party in interest. We reverse and remand on the 

award of post-judgment interest. 

ISSUES 

[¶2] We rephrase the issues: 

1. Did the district court err when it found damages in the 

amount of $50,000 without receiving evidence on the 

matter? 

2. Did the district court err as a matter of law when it 

awarded 10% post-judgment interest from September 

2007? 

3. Is Father the real party in interest?

FACTS 

[¶3] The parties divorced in 2007. Pursuant to their stipulated divorce decree, Father 

was to contribute $50,000 for college accounts for each of the parties’ two children. The 

accounts were established in September 2007. The parties agreed that each parent would 

be the trustee of one account. Father was to manage SL’s $50,000 account and Mother to 

manage JL’s $50,000 account. 

[¶4] Mother began withdrawing funds from JL’s account leaving a zero balance as of 

June 30, 2010. The district court issued two orders addressing this problem—one in June 

2011 and the other in December 2017. In June 2011, the district court entered a 

temporary order requiring Mother to reimburse the “education accounts to the level they 

should have been prior to any withdrawals . . . and in accordance with the amounts 

reflected in the similar accounts maintained by” Father. Mother did not appeal the order, 

and she did not reimburse any funds to JL’s account. 
2

[¶5] In February 2017, Father filed a motion for order to show cause why Mother 

should not be held in contempt for failure to comply with the 2011 order. The district 

court did not hold an evidentiary hearing. Instead, the court ordered the parties to submit 

briefs on the “issue of judgment interest with regard to the monies owed” by Mother. In 

December 2017, the district court entered its second order on the issue, a “Judgment on 

Order to Show Cause.” The court found Mother in contempt and required her to 

reimburse JL’s account by paying Father $132,138.74 ($50,000 plus 10% interest 

calculated from September 2007). The court then ordered Father to “retain 

reimbursement for those amounts he has expended on J.L.’s education” and put any 

“remaining amounts” into an “education trust fund to be administered solely” by Father. 

The court qualified its decision: 

4. The total judgment amount is entered to enforce the 

Decree of Divorce and constitutes judgment pursuant 

to W.S. § 20-2-310(c); not W.S. § 14-2-204. 

5. The total judgment amount shall continue to accrue a 

ten percent judgment interest rate pursuant to W.S. 

§ 1-16-102(a) until the full amount is paid as required 

by this ORDER at the rate of $35.53 (THIRTY-FIVE 

DOLLARS AND FIFTY-THREE) per day on the 

current amount due accruing after November 27, 2017. 

The court’s finding that the judgment was entered pursuant to Wyo. Stat. Ann. § 20-2-

310(c) (child support enforcement) was the basis for assessment of post-judgment interest 

at a 10% rate from 2007. See Wyo. Stat. Ann. §§ 1-16-102(a) and 20-2-310(c). Mother 

appeals. 

DISCUSSION 

I. Did the district court err when it found damages in the amount of $50,000 

without receiving evidence on the matter? 

[¶6] In December 2017, the district court found Mother in contempt and ordered her to 

pay $50,000 plus interest (we address the interest infra at ¶¶ 15–21). Mother contends 

that this award was erroneous because the court never required Father to prove damages. 

A. Standard of Review 

[¶7] Civil contempt requires proof of three elements: “1) an effective court order that 

required certain conduct by the alleged contemnor; 2) the contemnor had knowledge of 

the order; and 3) the alleged contemnor disobeyed the order.” Greer v. Greer, 2017 WY 
3

35, ¶ 29, 391 P.3d 1127, 1134 (Wyo. 2017) (quoting Shindell v. Shindell, 2014 WY 51, 

¶ 10, 322 P.3d 1270, 1274 (Wyo. 2014)). “Once those elements are proven, the burden 

shifts to the person charged with contempt to show he or she was unable to comply—i.e., 

that the failure to comply was not willful.” Greer, ¶ 29, 391 P.3d at 1134. A court may 

“award damages as a form of compensatory contempt to redress contumacious acts if it 

has the evidence to establish the amount of damage.” Id. ¶ 29, 391 P.3d at 1135; Walker 

v. Walker, 2013 WY 132, ¶ 39, 311 P.3d 170, 178 (Wyo. 2013). 

[¶8] We will reverse “a lower court’s ruling on an application for civil contempt” only 

upon a finding of “a serious procedural error, a violation of a principle of law, or a clear 

and grave abuse of discretion.” Greer, ¶ 30, 391 P.3d at 1135; see also Womack v. Swan, 

2018 WY 27, ¶ 29, 413 P.3d 127, 138 (Wyo. 2018); Roberts v. Locke, 2013 WY 73, ¶ 14, 

304 P.3d 116, 120 (Wyo. 2013). We review a district court’s factual findings with 

deference and will overturn them only upon a finding that they are clearly erroneous. 

Walters v. Walters, 2011 WY 41, ¶ 18, 249 P.3d 214, 227 (Wyo. 2011). “Factual 

findings are clearly erroneous when, although they have evidentiary support, we are left 

with the definite and firm conviction upon review of the entire evidence that the district 

court made a mistake.” Id. A district court’s conclusions of law are reviewed de novo. 

Id. 

B. Did the district court abuse its discretion when it did not require proof of 

damages? 

[¶9] Mother argues that the district court abused its discretion in finding damages in the 

amount of $50,000 when no evidentiary hearing was held requiring Father to prove 

damages. The record presented for our review consists only of portions of the record 

designated by the parties and Father’s amended statement of evidence, which the district 

court accepted as the official statement in accordance with W.R.A.P. 3.03.1 

[¶10] In a civil contempt matter, “a court may enter orders to compensate an aggrieved 

party for damage caused by a contemnor’s refusal to comply with a court order.” 

Meckem v. Carter, 2014 WY 52, ¶ 25, 323 P.3d 637, 645 (Wyo. 2014). “However, a 

compensatory civil contempt award must be based upon evidence of actual loss; 

otherwise, it will be considered speculative and arbitrary.” Id. (citing Walters, ¶¶ 24–25, 

249 P.3d at 229). 

 

1

 Mother did not provide a transcript of any hearings or conferences with the district court, but she did file 

a statement of the evidence in accordance with W.R.A.P. 3.03. Father filed objections to Mother’s 

statement and submitted his own proposed statement of the evidence amending the portions of Mother’s 

statement he found objectionable. After reviewing both, the district court issued an order approving 

Father’s statement, concluding “IT IS THEREFORE ORDERED that [Father’s] Proposed Amended 3.03 

Statement is a correct statement of the proceedings . . . .”
4

[¶11] Courts have examined compensatory civil contempt sanctions in divorce cases and 

have affirmed those awards when they are supported by the record. For example, in Mills 

v. Mills, the court upheld a civil contempt award to the husband resulting from the wife’s 

violation of the parties’ property settlement agreement when she improperly claimed one 

of the children as a dependent on her tax return. Mills v. Mills, 827 S.E.2d 391, 398 (Va. 

Ct. App. 2019). The appellate court concluded that the lower court’s $1,066 damage 

award to compensate the husband for inability to claim the child on his taxes was 

appropriate. Id. at 399. Likewise, in Bessolo v. Rosario, 966 N.E.2d 725, 732 (Ind. Ct. 

App. 2012), the appellate court affirmed a $2,500 compensatory damage award to Father 

where Mother was held in contempt for failing to dismiss a protective order which 

resulted in Father’s spending $2,500 to have his record expunged. 

[¶12] However, when the award is not supported by the record, it cannot stand. We 

considered a damages award for civil contempt in Walters, ¶¶ 24–25, 249 P.3d at 229–30. 

There, Mrs. Walters was found in civil contempt for her failure to comply with the terms 

of the parties’ divorce decree. Id. ¶¶ 19–22, 249 P.3d at 227–29. One of her 

transgressions was that she had not returned the contents of the parties’ safe to Mr. 

Walters, including Mr. Walters’s coin collection and personal documents, as she was 

ordered. Id. ¶ 22, 249 P.3d at 228–29. The district court assessed damages in the amount 

of $10,000, “noting that it was ‘not calculated with great precision because the very 

nature of the acts . . . are such as to make it impossible to calculate something resembling 

damages.’” Id. ¶ 24, 249 P.3d at 229. The district court later explained that “[t]here 

really wasn’t any formula” used to calculate the damages and declined the invitation by 

Mrs. Walters’s counsel to hold a hearing on the value of the coins and personal 

documents that had not been returned to Mr. Walters. Id. Mrs. Walters appealed, 

arguing that the $10,000 damage award was speculative and arbitrary. We agreed and 

reversed the award. Id. ¶¶ 24–25, 249 P.3d at 229–30. Similarly, in Doyle v. Doyle, the 

trial court ordered Father to return the gold jewelry and a gold nugget to Mother and, if 

they were not returned, to pay Mother $1,000 per item. Doyle v. Doyle, 815 P.2d 366, 

371–72 (Alaska 1991). Father appealed, and the Alaska Supreme Court held that where 

there was no “correlation between the aggrieved party’s actual damages . . . and the 

amount assessed as damages” the trial court abused its discretion by awarding civil 

contempt damages. Id. at 372. 

[¶13] Here, the Rule 3.03 statement provides the following facts: 

 Father deposited $100,000 into the education trust accounts on September 19, 

2007. 

 On June 27, 2017, in chambers prior to the scheduled evidentiary hearing, 

Mother’s counsel conceded that Mother received $50,000 in 2007 to establish 

JL’s education account. 
5

 JL’s account showed a zero balance as of June 30, 2010, with a final 

withdrawal on that date in the amount of $23,404.05. 

 At the July 14, 2017, status conference, Mother’s counsel conceded that 

Mother owed $50,000 but disputed interest, including the amount and date 

from which it should accrue. 

[¶14] Unlike the damage award in Walters, the $50,000 award was not speculative or 

arbitrary but was based upon evidence conceded by Mother. When the account was 

opened it had a $50,000 balance, and Mother withdrew all the funds in the account. The 

district court awarded a judgment of $50,000. We are not “left with the definite and firm 

conviction upon review of the entire evidence that the district court made a mistake.” See 

Walters, ¶ 18, 249 P.3d at 227. While there may be better measures of the loss incurred 

in JL’s account, it was not unreasonable for the district court to conclude that JL’s college 

fund should be reimbursed to its opening balance. Accordingly, we affirm that portion of 

the district court’s order. 

II. Did the district court err as a matter of law when it awarded 10% post-judgment 

interest from September 2007? 

[¶15] The district court concluded that its order requiring Mother to reimburse JL’s 

college fund was child support and applied the child support enforcement statute, Wyo. 

Stat. Ann. § 20-2-310(c), to support its determination that the judgment was effective as 

of September 2007—the date the divorce decree required the account to be established. 

The court then assessed post-judgment interest at the statutory rate of 10% from 

September 2007. See Wyo. Stat. Ann. § 1-16-102. Mother argues that the district court’s 

application of the child support enforcement statute and subsequent award of postjudgment interest were erroneous. 

A. Were damages properly awarded under Wyo. Stat. Ann. § 20-2-310(c)? 

[¶16] The district court ordered that the $50,000 “constitutes [a] judgment pursuant to 

W.S. § 20-2-310(c)” and awarded post-judgment interest based upon that conclusion. 

See infra ¶ 18. Section 20-2-310 provides for the enforcement of child support orders 

and states that “[i]n any case in which child support has been ordered to be paid to the 

clerk, any periodic payment or installment under the provisions of an order concerning 

maintenance is, on the date it is due, a judgment by operation of law.” Wyo. Stat. Ann. 

§ 20-2-310(c) (LexisNexis 2019). 

[¶17] Mother correctly argues (and Father seems to concede) that reimbursement of JL’s 

college fund is not child support and that this provision is therefore inapplicable. The 

divorce decree ordered Father to pay child support and to fund the college accounts. 

Mother had no such obligation. In contrast, the orders at issue here required Mother, not 
6

Father, to reimburse funds to JL’s college account. The district court’s June 2011 order 

required Mother to reimburse the “education accounts to the level they should have been 

prior to any withdrawals she made,” and the district court’s December 2017 judgment 

required Mother to pay $50,000 plus interest. Neither the June 2011 order nor the 

December 2017 judgment established periodic payments or required Mother to pay 

money to the clerk of court as specified by Wyo. Stat. Ann. § 20-2-310(c). Accordingly, 

the district court’s judgment was not an order to enforce child support issued pursuant to 

Wyo. Stat. Ann. § 20-2-310(c), and the district court erred as a matter of law when it 

concluded otherwise.2 

B. Did the district court err as a matter of law when it awarded 10% postjudgment interest from September 2007? 

[¶18] Wyoming Statute § 1-16-102 provides post-judgment interest on “all decrees and 

judgments for the payment of money” in the amount of 10% per year. Wyo. Stat. Ann. 

§ 1-16-102(a) (LexisNexis 2019). The district court awarded statutory post-judgment 

interest to Father beginning in September 2007. Our conclusion that the judgment could 

not have been issued pursuant to Wyo. Stat. Ann. § 20-2-310(c) (see supra ¶¶ 16–17) 

means that the district court erred as a matter of law when it awarded post-judgment 

interest beginning in September 2007 based upon § 20-2-310(c). 

[¶19] Father argues that 10% post-judgment interest is warranted from September 2007, 

notwithstanding that the award is not child support. Any finding that interest is available 

would have to be supported by the law on assessment of pre- or post-judgment interest. 

Post-judgment interest is available when there is a “judgment[] for the payment of 

money” and accrues at the rate of 10% per year absent any contractual agreement to the 

contrary. See Wyo. Stat. Ann. § 1-16-102(a); see also Air Methods/Rocky Mountain 

Holdings, LLC v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2018 

WY 128, ¶¶ 65–70, 432 P.3d 476, 491–92 (Wyo. 2018) (post-judgment interest is 

available for judgments, not arbitration or workers’ compensation awards). 

[¶20] Prejudgment interest, on the other hand, is a measure of damages to compensate 

for the lost use of money during the time it was owed a prevailing party. See Stewart 

Title Guar. Co. v. Tilden, 2008 WY 46, ¶ 28, 181 P.3d 94, 103–04 (Wyo. 2008); Pennant 

Serv. Co. v. True Oil Co., 2011 WY 40, ¶ 36, 249 P.3d 698, 711 (Wyo. 2011); State v. 

BHP Petroleum Co., 804 P.2d 671, 673 (Wyo. 1991). Prejudgment interest is available 

when: “(1) the claim [is] liquidated, as opposed to unliquidated, meaning it is readily 

 

2

 That is not to say that the judgment finding Mother in contempt is invalid. Neither party challenges the 

district court’s conclusion finding Mother in civil contempt, and district courts have inherent contempt 

powers to enforce their orders. See, e.g., Womack, ¶ 29, 413 P.3d at 138; JLK v. MAB, 2016 WY 73, 

¶ 19, 375 P.3d 1108, 1113 (Wyo. 2016); Walker, ¶ 39, 311 P.3d at 178. 
7

computable via simple mathematics; and (2) the debtor . . . receive[s] notice of the 

amount due before interest begins to accumulate.” KM Upstream, LLC v. Elkhorn 

Constr., Inc., 2012 WY 79, ¶ 45, 278 P.3d 711, 727 (Wyo. 2012) (citing Bowles v. 

Sunrise Home Ctr., Inc., 847 P.2d 1002, 1005–06 (Wyo. 1993)). “[I]n the absence of a 

contractual agreement to a different percentage, the appropriate measure of prejudgment 

interest is the seven percent per annum stated in Wyo. Stat. Ann. § 40-14-106(e).” KM, 

¶ 45, 278 P.3d at 727. 

[¶21] The record is not adequate for us to determine whether, when, or how pre- or postjudgment interest should apply. Specifically, we are unable to discern whether or when 

Father’s claim was liquidated and when Mother received notice of an amount due. There 

is no evidence in the record regarding the level of interest the education account could 

have earned, the amounts that were in SL’s account at different times (specifically, in 

June 2011 when the court ordered Mother to reimburse JL’s account), or the amounts 

withdrawn by Mother. Accordingly, we do not agree a post-judgment 10% interest 

award dating from September 2007, or even June 2011, was justified, although we note 

that some measure of pre- and post-judgment interest may be appropriate. See, e.g.,

Wyo. Stat. Ann. §§ 1-16-102(a) and 40-14-106(e); Thorkildsen v. Belden, 2012 WY 8, 

¶ 8, 269 P.3d 421, 423 (Wyo. 2012) (prejudgment interest is “an accepted form of relief 

where a claim is . . . readily computable by basic mathematical calculation”); KM, ¶ 45, 

278 P.3d at 727 (prejudgment interest “is awarded in the appropriate case . . . as damages 

for the lost use of money”); Pennant, ¶ 36, 249 P.3d at 711 (prejudgment interest is 

“compensation . . . for lost use of money . . . during the lapse of time between the accrual 

of the claim and the date of judgment”); ANR Prod. Co. v. Kerr-McGee Corp., 893 P.2d 

698, 704 (Wyo. 1995) (Conversion cases, like cases where prejudgment interest on 

liquidated damages is due, warrant “the equivalent of interest . . . as an element of 

damages . . . to compensate the plaintiff for the loss sustained because of the taking of 

property.”). We remand for further proceedings on interest. 

III. Is Father the real party in interest? 

[¶22] Mother argues that JL, and not Father, is the real party in interest in this matter. 

Wyoming Rules of Civil Procedure 17(a) requires actions to be “prosecuted in the name 

of the real party in interest.”3 W.R.C.P. 17(a)(1). Mother raises this issue for the first 

time on appeal and, as a result, it has been waived. See Trefren Constr. Co. v. V&R 

Constr., LLC, 2016 WY 121, ¶ 36, 386 P.3d 317, 326 (Wyo. 2016) (citing K-B Trucking 

 

3

 February 2017 amendments to Rule 17 of the Wyoming Rules of Civil Procedure became effective 

March 1, 2017. W.R.C.P. 17. Accordingly, the old rule was in effect on February 27, 2017, when Father 

filed his motion to show cause. “We apply the rule in effect at the time the lawsuit was filed.” BTU W. 

Res., Inc. v. Berenergy Corp., 2019 WY 57, ¶ 15, 442 P.3d 50, 55 n.2 (Wyo. 2019); see also DNW v. 

State, Dep’t of Family Servs., 2007 WY 54, ¶ 9, 154 P.3d 990, 992 (Wyo. 2007); McKennan v. Wyo. 

Sawmills, Inc., 816 P.2d 1303, 1303 n.1 (Wyo. 1991). 
8

Co. v. Riss Int’l Corp., 763 F.2d 1148, 1153 n.2 (10th Cir. 1985) (“The real party in 

interest defense may be waived if it is not timely raised.”)); Action Bailbonds v. State, 

2002 WY 103, ¶¶ 8–9, 49 P.3d 992, 994 (Wyo. 2002) (“It has long been recognized that 

where an objection in the trial court that a party is not the real party in interest is not 

timely voiced, such delay constitutes a waiver of any objection on that ground.”). The 

Comment to Rule 17 of the Federal Rules of Civil Procedure explains: 

The failure to timely assert that the plaintiff is not the real 

party in interest may result in waiver of the objection. 

Because the preferred remedy for a real party error is to cure 

it . . . , timeliness is in large part linked to whether the 

objection is raised at a point in the litigation when the error 

can be cured without undue disruption and prejudice. The 

later it is raised, the more likely the court will find the 

objection to have been waived. 

1 Fed. R. Civ. P. 17 Commentary. 

CONCLUSION 

[¶23] The district court did not abuse its discretion when it ordered Mother to reimburse 

the account in the amount of $50,000. The district court erred as a matter of law when it 

ordered payment of statutory post-judgment interest. Mother waived her argument that 

Father is not the real party in interest. We affirm in part, reverse in part, and remand for a 

determination on interest.