Inskeep v. Inskeep

752 P.2d 434, 1988 Wyo. LEXIS 42, 1988 WL 30337
CourtWyoming Supreme Court
DecidedApril 7, 1988
Docket87-224
StatusPublished
Cited by14 cases

This text of 752 P.2d 434 (Inskeep v. Inskeep) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Inskeep v. Inskeep, 752 P.2d 434, 1988 Wyo. LEXIS 42, 1988 WL 30337 (Wyo. 1988).

Opinions

CARDINE, Justice.

In the course of divorce proceedings, appellant served discovery requests upon ap-pellee. Appellee did not respond. On the eve of the divorce hearing, appellant filed a motion to compel discovery and a motion for continuance. The motions were denied, and appellee was granted a divorce with attendant property settlement and child custody and support provisions. Upon appeal, appellant presents two issues: (1) whether the trial court abused its discretion in denying appellant’s motion to compel discovery; and (2) whether the trial court abused its discretion in denying appellant’s motion for continuance. We affirm.

The parties married in 1982 and the union produced two children. In September 1986, the parties separated when appellant moved out of the family residence. Appel-lee filed a complaint on September 24,1986, seeking divorce, custody of the children, child support, exclusive occupancy of the parties’ residence, and an allocation of the marital property and debts. On October 16, 1986, appellant filed an answer and a counterclaim requesting custody of the children and an equitable property division.

On December 4, 1986, appellee filed a motion for trial setting. An accompanying pretrial memorandum asserted an inability of the parties to negotiate a settlement and proposed a plan of child custody and support and for division of property and debts. No further action of record appears until April 16, 1987, when appellant filed and served upon appellee a discovery request designated as “Combined Interrogatories and Request for Production.” The interrogatories and requests for documents primarily concerned marital property, and they were lengthy and exhaustive in relation to the rather modest assets of the parties. Appellee did not respond to the request for discovery.

On May 1, 1987, appellee again filed a motion for trial setting with an additional attached pretrial memorandum with proposals for custody, support and property apportionment similar to the earlier memorandum. The district court issued an order setting trial for May 22,1987. For reasons not disclosed in the record, trial was not held on that date. On July 13,1987, appel-lee filed another motion for hearing, and an order from the district court issued on the same date setting trial for July 29, 1987.

On July 28,1987, appellant filed a motion to compel discovery and a motion for a continuance. The motions had been served on appellee on July 24. The motion for continuance was based on appellee’s failure to respond to discovery and the fact that appellant had taken temporary out-of-state employment precluding his attendance at trial. Appellee filed a response to the motions asserting, inter alia, that the discovery sought was specious in that the information was well known to appellant and that appellant was merely attempting to delay the proceedings.

Trial was held on July 29, 1987, with appellant not in attendance but represented by counsel. Appellant’s motions were orally denied just prior to trial. A divorce decree was issued and filed on July 30, 1987, granting appellee an absolute divorce, providing for joint custody of the children with primary and physical custody residing in appellee, and dividing the marital property. A formal order denying appellant’s pretrial motions was filed on August 10, 1987. This appeal followed.

[436]*436Appellant first contends that the district court abused its discretion in denying his motion to compel discovery pursuant to Rule 37(a)(2), W.R.C.P., which provides:

“If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, * * * or * * * fails to answer an interrogatory submitted under Rule 33, or * * * in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted * * *, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request.”

Appellant sought to compel a response to his combined interrogatories and request for production of documents served on ap-pellee in accordance with Rules 33 and 34, W.R.C.P.

We have said that the decision whether to require answers to interrogatories lies within the broad discretion of the district court. Mauch v. Stanley Structures, Inc., Wyo., 641 P.2d 1247 (1982), citing 8 Wright and Miller, Federal Practice and Procedure: Civil § 2176. Wright and Miller, in further commenting on Rule 33, F.R.C.P., which is identical to Rule 33, W.R.C.P., also state:

“Ordinarily the exercise of discretion by the trial court will be sustained by the appellate court. Only if the trial court abuses its discretion to the prejudice of a party will the appellate court interfere.” (Footnotes omitted.) 8 Wright and Miller, supra, § 2176, p. 558.

Similarly, with respect to Rule 34, F.R.C.P., also identical to Rule 34 W.R.C.P., “the appellate court will not interfere with the exercise of discretion by the trial court in the absence of a showing of prejudicial error from an abuse of discretion.” (Footnotes omitted.) 8 Wright and Miller, supra, § 2215, p. 653.

This court has defined abuse of discretion in this manner:

“A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did.” Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

The district court’s reasons for denying appellant’s motion to compel are not disclosed in the record. Nevertheless, under the circumstances of this case as revealed in the record, we cannot conclude that such denial constituted an abuse of discretion. Appellant’s discovery request was served upon appellee nearly seven months after commencement of this action and over four months after appellee’s first motion for trial setting. Additionally, under both Rules 33 and 34, W.R.C.P., appellant could have sought a motion to compel the discovery thirty days after submission of the request. Appellant, however, waited over three months, until the day before trial, to file his motion. In the interval, two further motions for trial had been filed by appellee, and a trial date had been set twice.

It is also clear, as appellee contends, that appellant was seeking, through discovery, information already known to him. The extent of the limited marital property was well known to each party and had been discussed in settlement negotiations. The proposed property division and child custody and support provisions as outlined in appellee’s two pretrial memoranda, both of which had been served on appellant, were substantially similar to the eventual corresponding provisions in the divorce decree. Both parties were intimately familiar with the facts and issues of the case.

Given the nature of the requested discovery, unquestionably the better practice for appellee would have been either to serve objections to the discovery requests pursuant to Rules 33 and 34, W.R.C.P., or to have sought a protective order pursuant to Rule 26(c), W.R.C.P., which provides:

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Inskeep v. Inskeep
752 P.2d 434 (Wyoming Supreme Court, 1988)

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Bluebook (online)
752 P.2d 434, 1988 Wyo. LEXIS 42, 1988 WL 30337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inskeep-v-inskeep-wyo-1988.