                IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 101

                                                              APRIL TERM, A.D. 2013

                                                                    August 28, 2013

ZYGMUNT JOHN SAMIEC,

Appellant
(Plaintiff),

v.
                                                     S-12-0269
SUSAN KAY FERMELIA,
f/k/a SUSAN KAY SAMIEC,

Appellee
(Defendant).

                  Appeal from the District Court of Sweetwater County
                          The Honorable Nena James, Judge

Representing Appellant:
      Jon Aimone of Lemich Law Center, Rock Springs, WY.

Representing Appellee:
      Eric F. Phillips, Rock Springs, WY.

Before KITE, C.J., HILL, VOIGT, BURKE, and DAVIS, 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.
HILL, Justice.

[¶1] Father challenges an order interpreting divorce decree provisions that govern
payment of counseling and medical expenses for the parties’ children. We affirm.

                                          ISSUES

[¶2]   Father states his issues as follows:

              1. On a stipulated case, did the District Court err in
                 answering a question which it had not been asked to
                 answer?

              2. Did the District Court abuse its discretion when it denied
                 Fathers’ Motion for Continuance to allow the presentation
                 of evidence on the question, which the District Court
                 answered but had not been asked to answer?

                                          FACTS

[¶3] In December of 2008, Zygmunt John Samiec (Father) filed for divorce from Susan
Kay Fermelia f/k/a Samiec (Mother). Mother was awarded temporary custody of their
two children and in 2009 the parties executed a settlement agreement, which was
incorporated into the parties’ divorce decree. Mother was awarded primary residential
custody of the two children, with visitation for Father. The parties’ agreement further
included the following two provisions, at issue in this case:

                     7. . . . [Father] and [Mother] further agree [to] equally
              share the current outstanding and future costs and fees for the
              minor children’s extracurricular activities, school activities
              and counseling costs. . . .

                     ....

                     10. . . . [Father] currently carries medical insurance
              for the minor children. All costs of medical, dental
              optometric [sic], or orthodontic care not covered by such
              insurance for the children shall be split between the parties
              with [Father] paying 75% and [Mother] paying 25% of such
              uncovered costs.

[¶4] The parties’ divorce was finalized in December of 2009. In early 2010 one of
their children was placed at the Wyoming Behavioral Institute (WBI) after threatening


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suicide. Soon thereafter, Father filed a petition to modify the divorce decree, seeking
custody of their two children. Mother answered and counterclaimed. A hearing was set
for March 29, 2012, but prior to the hearing the parties resolved their custody issues.
However, the parties could not resolve how to divide the costs of their child’s stay at
WBI, pursuant to the settlement agreement. An unreported hearing occurred and the
court issued a decision letter which provided as follows:

                    This is a post-divorce matter heard by the Court on
             March 29, 2012. Prior to the scheduled hearing, counsel met
             with me in chambers and advised that they had resolved most
             issues raised by the parties and that they needed a ruling from
             the court on one remaining issue upon which they had been
             unable to reach agreement.

                    ....

                    Counsel advised me that it was not necessary to deal
             with specific monetary figures, but rather I was asked to
             define which costs relating to mental health issues were
             included in counseling costs which were to be split equally
             and which costs, if any, fell into the category of medical costs
             which required Mr. Samiec to pay 75% and his former wife to
             pay 25%. The context of the issue was explained both in
             chambers and in the courtroom as relating to present care
             being provided to one of [the] parties’ minor children who is
             residing in a treatment facility. At no time during the in-
             chambers discussion or courtroom arguments was any
             reference made to agreements entered into by the parties
             regarding the division of these placement costs. Indeed, my
             understanding was that cost for the entire stay was at issue;
             otherwise, there would be no need for court clarification.

                    My approach to the issue is pretty simple: any mental
             health treatment which goes beyond counseling would be
             considered a medical expense. Counseling is generally a
             periodic verbal interaction with a therapist. I determined that
             anytime a psychiatrist became involved in the process or if
             psychotropic medications were prescribed, it became a
             medical expense, my reasoning being that a psychiatrist is a
             medical doctor specializing in mental illness and that the
             involvement of such a trained specialist rendered the
             treatment medical and took it beyond the scope of
             counseling. I explained that while a psychiatrist could


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             certainly include counseling as part of his or her treatment of
             a patient (in which case such counseling would be considered
             a medical expense), counseling by a therapist who is not a
             medical doctor or who does not possess other advanced
             professional licensure would not fall into the realm of a
             medical expense.

                    I further determined that placement in a residential
             treatment facility goes beyond counseling as set forth in the
             Stipulation and Agreement due to the nature and extent of the
             services provided by the facility, thereby rendering such
             placement and treatment a medical expense. [Emphasis in
             original.]

[¶5] After the court announced its decision orally, Father’s counsel requested a
continuance which the court denied. The court entered its Order on Modification of
Judgment and Decree of Divorce on August 24, 2012 and Father appealed. No hearing
transcript was provided in the appellate record and although Father certified that he
intended to procure a statement of the evidence he did not do so.

                                     DISCUSSION

[¶6] Father argues on appeal that because this case was submitted to the district court
as a stipulated or agreed case, and only queried the meaning of “counseling” generally,
the district court improperly answered the question in the context of the parties’ dispute.
Father argues that the district court should have only answered the question generally.
Furthermore, Father argues that the district court improperly considered extrinsic
evidence in analyzing the parties’ settlement agreement and abused its discretion when it
denied his motion for continuance at the hearing.

[¶7] Mother submits that the district court properly interpreted the settlement
agreement’s provision, that it did not use extrinsic evidence, and that its denial of
Father’s motion to continue was appropriate. Mother also argues that the lack of a
hearing transcript should weigh against Father’s claims.

[¶8] We share Mother’s dismay at the lack of hearing transcript, as this Court’s review
is undeniably hampered when an appealed order is predicated on testimony and evidence
presented at an unrecorded hearing. As we have stated before:

                    When this Court does not have a properly
             authenticated transcript before it, it must accept the trial
             court’s findings of fact upon which it bases any decisions
             regarding evidentiary issues. Capshaw v. Schieck, 2002 WY


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             54, ¶ 21, 44 P.3d 47, [54] (Wyo. 2002). The failure to
             provide a transcript does not necessarily require dismissal of
             an appeal, but our review is restricted to those allegations of
             error not requiring inspection of the transcript. Lacking a
             transcript, or a substitute for the transcript, the regularity of
             the trial court’s judgment and the competency of the evidence
             upon which that judgment is based must be presumed.
             Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo. 1996); Combs
             v. Sherry-Combs, 865 P.2d 50, 55 (Wyo. 1993); and see
             Wood v. Wood, 865 P.2d 616 (Wyo. 1993) (dismissing appeal
             for lack of record, rather than affirming).

Seherr-Thoss v. Seherr-Thoss, 2006 WY 111 ¶ 6, 141 P.3d 705, 710 (Wyo. 2006)
(quoting Harshberger v. Harshberger, 2005 WY 99, ¶ 3, 117 P.3d 1244, 1246-47 (Wyo.
2005)). Under these circumstances, because we must accept the district court’s findings
of fact, our review “is effectively limited to determining whether or not an error of law
appears on the record.” Harshberger, ¶ 6, 117 P.3d at 1249. We discern no such error of
law from our review of the record or from the arguments presented.

[¶9] In addition, the absence of a hearing transcript presents its own challenge with
regard to cases decided on stipulated or agreed upon facts. As contemplated by Koontz v.
South Superior, 716 P.2d 358, 361 (Wyo. 1986),

                    In order to make an agreed case a just proceeding there
             are certain requirements that must be met. First, there must
             be “a clear statement of the facts agreed on.” 3 Am.Jur.2d
             Agreed Case § 12 at 732; see Fugate v. Mayor and City
             Council of Town of Buffalo, Wyo., 348 P.2d 76, 81, 97
             A.L.R.2d 243 (1959). Second, the statement of facts must
             “be sufficient in itself to enable the court directly to draw
             conclusions of law determinative of the matter in
             controversy.” 3 Am.Jur.2d Agreed Case § 14 at 733. Finally,
             “the statement of facts constituting an agreed case should be
             made part of the record in the proceeding, lest there be no
             basis for review of the judgment.” Id. § 16 at 734.

                    It is clear from the record that the parties did not
             present an agreed case that could produce a just result. They
             did not enter a stipulation of facts from which the district
             court could draw legal conclusions. Nor can a stipulation be
             found in the record upon which we can ground our appellate
             review.     The district court rendered judgment on its
             assumption that the parties had submitted the case for


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             determination on the briefs. Yet there was no motion by
             either party indicating that the facts had been sufficiently
             developed for such a decision. Consequently, the surprise
             order was based only on conflicting and inadequate affidavits.
             The adjudication may have been speedy and inexpensive as
             encouraged by Rule 1, W.R.C.P., but it was unjust. [Footnote
             omitted.]

[¶10] In the absence of a hearing transcript, and in accordance with Rule 3.03 of the
Wyoming Rules of Appellate Procedure,

                     If no report of the evidence or proceedings at a hearing
             or trial was made, or if a transcript is unavailable, appellant
             may prepare a statement of the evidence or proceedings from
             the best available means including appellant's recollection.
             The statement shall be filed and served on appellee within 35
             days of the filing of the notice of appeal. Appellee may file
             and serve objections or propose amendments within 15 days
             after service. The trial court shall, within 10 days, enter its
             order settling and approving the statement of evidence, which
             shall be included by the clerk of the trial court in the record
             on appeal.

[¶11] Although Father certified in his Notice of Appeal that he intended to procure a
statement of the evidence, he did not do so. Our hands are tied. This Court cannot assess
whether or not the district court was presented with adequate facts or “context” to decide
the issue and satisfy the Koontz requirements, if we are to assume this was an “agreed
case.” Given the lack of transcript and no statement of evidence, we must presume the
context presented to the district court was adequate to satisfy the requirements of Koontz.

                                    CONCLUSION

[¶12] Affirmed.




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