                IN THE SUPREME COURT, STATE OF WYOMING

                                         2014 WY 28

                                                         OCTOBER TERM, A.D. 2013

                                                                February 25, 2014

IN THE MATTER OF THE
WRONGFUL DEATH OF DANIEL P.
SORAN, II, DAN SORAN, PERSONAL
REPRESENTATIVE:

DAN SORAN, LYNETTE SORAN and
SARAH SORAN,

Appellants                                          S-13-0098
(Plaintiffs),

v.

LAURA SORAN,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                     The Honorable Thomas T.C. Campbell, Judge

Representing Appellants:
      Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, WY, and Michael L. Weiner
      of Yaeger, Jungbauer & Barczak, PLC, Saint Paul, MN. Argument by Mr. Jubin.

Representing Appellee:
      Scott W. Meier, Lucas Buckley, and Traci L. Lacock of Hathaway & Kunz, P.C.,
      Cheyenne, WY. Argument by Mr. Meier.

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

*Justice Voigt retired effective January 3, 2014.
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] This case involves a wrongful death claim brought on behalf of the beneficiaries
of Daniel P. Soran, II (Decedent). Decedent’s father, in his capacity as personal
representative, settled the wrongful death claim with the applicable liability insurance
companies for $400,000. Thereafter, a dispute arose between the beneficiaries as to how
the settlement proceeds should be distributed, with Decedent’s allegedly estranged wife,
Laura Soran, on one side, and Decedent’s parents and sister on the other side. Following
a bench trial on distribution of the damages, the district court awarded Laura Soran 75%
of the settlement proceeds and divided the remainder of the proceeds among Decedent’s
parents and sister. Decedent’s parents and sister appeal, contending that the court erred
in imposing on them the burden to disprove Laura Soran’s damages and that the court’s
distribution was clearly erroneous in light of the evidence. We reverse and remand for
proceedings consistent with the direction herein.

                                        ISSUES

[¶2] Decedent’s parents and sister, Appellants, present the issues for our review as
follows:

             1.     The trial court erred as a matter of law, in imposing the
                    burden upon other beneficiaries to disprove the
                    estranged wife’s claim to wrongful death damages.

             2.     When distributing settlement proceeds to wrongful
                    death beneficiaries, the trial court’s decision to award
                    75% of these proceeds to the estranged wife was
                    clearly erroneous where the evidence proved a clear
                    and unquestionable mutual intent to end the marriage,
                    and where the estranged wife failed to prove the loss
                    of a future relationship with the decedent.

                                        FACTS

[¶3] On February 19, 2011, Decedent died of injuries sustained in an automobile
accident. Decedent was survived by his wife, Laura Soran, by his parents, Dan and
Lynette Soran, and by his sister, Sarah Soran. Robert A. Curran was the driver of the
vehicle in which Decedent was a passenger when he died, and Decedent’s father, Dan
Soran, in his capacity as wrongful death personal representative, settled with Curran’s
insurance providers for the sum of $400,000. A dispute arose between Decedent’s
beneficiaries as to how the settlement proceeds should be distributed. On October 18,
2011, Dan Soran, again in his personal representative capacity, filed a Rule 67 motion to



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deposit the settlement proceeds for holding by the clerk of court until such time as their
proper distribution among Decedent’s survivors could be determined.

[¶4] On February 4, 2013, a bench trial was held to determine distribution of the
settlement proceeds. Decedent’s parents and sister were represented on one side of the
dispute, and they framed the dispute in their pretrial memorandum as follows:

             The remaining dispute lays between, on the one hand,
             Daniel’s estranged wife Laura Soran, and on the other,
             Daniel’s immediate family, consisting of his father, mother,
             and sister (respectively Dan, Lynn and Sarah Soran).
             Daniel’s parents and sister collectively dispute the portion
             claimed by Laura, based on evidence that the marriage
             between Daniel and Laura was irretrievably broken, and that
             Daniel had unquestionably planned to divorce Laura. In
             addition to presenting evidence showing the extremely close,
             loving and ongoing relationship between Daniel and his
             parents and sister, an additional focus at trial will be on the
             extensive evidence documenting Daniel’s intent to end his
             marriage to Laura, refuting her damage claims.

[¶5] Decedent’s wife, Laura Soran, was represented on the other side of the dispute,
and she described the dispute as follows in her pretrial memorandum:

                     Laura Soran claims that she has significant damages
             resulting from the death of her husband, Daniel P. Soran, II.
             Laura Soran’s damages include economic damages of loss of
             support as well as non-economic damages resulting from the
             loss of care[,] comfort and society of Decedent.
                     On information and belief, the other wrongful death
             beneficiaries claim that they have damages resulting from
             the death of Decedent and further claim that Laura Soran and
             Decedent’s marriage would have ended in divorce and that,
             therefore, Laura Soran’s damages in this matter are limited
             to the care, comfort, society and support that Laura Soran
             would have received prior to any divorce.
                     Laura Soran denies that her marriage would have
             ended in divorce.

[¶6] At trial, Decedent’s parents and sister submitted evidence of their close
relationship with Decedent. They also presented evidence, through testimony and
exhibits, including copies of text messages, and divorce documents, that Decedent and
his wife were living separately within their home, that Decedent’s wife was making plans


                                             2
to move from the home, and that Decedent and his wife had divided property, had found
new homes for their pets, and were planning to divorce. Laura Soran, on the other hand,
testified that she felt Decedent had a drinking problem, that the actions she had taken
toward divorce in the months before Decedent’s death were intended to force him to get
help, and that she was not certain that she and Decedent would ultimately have divorced.
She also testified concerning the economic loss she suffered as a result of Decedent’s
death and the loss she suffered as a result of losing the companionship of Decedent, who
she described as her best friend.

[¶7] On February 25, 2013, the district court issued its order distributing the settlement
proceeds. The court ordered Decedent’s wife, Laura Soran, to receive a 75% share of the
settlement proceeds, Decedent’s parents to each receive a 10% share, and Decedent's
sister to receive a 5% share. Decedent’s parents and sister timely filed a notice of appeal.

                               STANDARD OF REVIEW

[¶8] The parties’ claims to distribution of the wrongful death settlement proceeds were
tried to the court, and we therefore apply the following standard of review:
                    Following a bench trial, this court reviews a district
                 court’s findings and conclusions using a clearly erroneous
                 standard for the factual findings and a de novo standard
                 for the conclusions of law. Piroschak v. Whelan, 2005
                 WY 26, ¶ 7, 106 P.3d 887, 890 (Wyo. 2005).
                     The factual findings of a judge are not entitled to the
                     limited review afforded a jury verdict. While the
                     findings are presumptively correct, the appellate court
                     may examine all of the properly admissible evidence
                     in the record. Due regard is given to the opportunity of
                     the trial judge to assess the credibility of the witnesses,
                     and our review does not entail re-weighing disputed
                     evidence. Findings of fact will not be set aside unless
                     they are clearly erroneous. A finding is clearly
                     erroneous when, although there is evidence to support
                     it, the reviewing court on the entire evidence is left
                     with the definite and firm conviction that a mistake has
                     been committed.
              Piroschak, ¶ 7, 106 P.3d at 890. Findings may not be set aside
              because we would have reached a different result. Harber v.
              Jense [Jensen], 2004 WY 104, ¶ 7, 97 P.3d 57, 60 (Wyo.
              2004). Further,



                                              3
                     we assume that the evidence of the prevailing party
                     below is true and give that party every reasonable
                     inference that can fairly and reasonably be drawn from
                     it. We do not substitute ourselves for the trial court as
                     a finder of facts; instead we defer to those findings
                     unless they are unsupported by the record or erroneous
                     as a matter of law.
                  Id.

             Pennant Service Co., Inc. v. True Oil Co., LLC, 2011 WY 40,
             ¶ 7, 249 P.3d 698, 703 (Wyo. 2011) (quoting Hofstad v.
             Christie, 2010 WY 134, ¶ 7, 240 P.3d 816, 818 (Wyo. 2010))
             (some citations omitted). We review the district court’s
             conclusions of law de novo. Lieberman v. Mossbrook, 2009
             WY 65, ¶ 40, 208 P.3d 1296, 1308 (Wyo. 2009).

Claman v. Popp, 2012 WY 92, ¶ 22, 279 P.3d 1003, 1012 (Wyo. 2012).

                                     DISCUSSION

A.    Burden of Proof

[¶9] Decedent’s parents and sister contend that in allocating the wrongful death
settlement proceeds, the district court improperly shifted the burden to them to prove that
Decedent’s marriage to Laura Soran would not have continued had Decedent survived
and thus improperly resolved any doubt on that question against them. Based on our
review of the court’s order, we must agree.

[¶10] Wyoming’s wrongful death statute provides as follows concerning damages:

                   The court or jury, as the case may be, may award such
             damages, pecuniary and exemplary, as shall be deemed fair
             and just. Every person for whose benefit an action for
             wrongful death is brought may prove his respective damages,
             and the court or jury may award such person that amount of
             damages to which it considers such person entitled, including
             damages for loss of probable future companionship, society
             and comfort.

Wyo. Stat. Ann. § 1-38-102(c) (LexisNexis 2013). Under Wyoming’s wrongful death
statute, “[n]o damages can be awarded beyond those damages that are proven at trial.”
Knowles v. Corkill, 2002 WY 119, ¶ 25, 51 P.3d 859, 866 (Wyo. 2002). This Court has
further explained:


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             Under the statute, damages are not presumed. Each individual
             participating must bring and prove their respective claim for
             damages. See Farmers Ins. Exchange v. Dahlheimer, 3 P.3d
             820, 823 n. 1 (Wyo.2000) (“each person entitled to participate
             must establish damages”).

Knowles, ¶ 23, 51 P.3d at 866.

[¶11] The district court acknowledged the above-quoted burden of proof, but it then
went on to state as follows concerning the evidence relating to Decedent’s marriage (our
emphasis added):

                    4.      Having determined that Laura is a proper
             beneficiary under the wrongful death statute, the Court must
             address the effect of the evidence concerning her and Daniel’s
             marriage. Initially, this Court notes that there is no Wyoming
             law specifically on point. Fair guidance can be found by the
             following statement in Recovery for Wrongful Death:
                            The essence of the question of
                    appropriate damages in death actions is, “Has
                    an appropriate plaintiff suffered compensable
                    damage, and, if so, to what extent?” This is the
                    question the fact-finder must answer, not some
                    separate      question—rife       with       moral
                    connotations—which might be, “Should one
                    who is guilty of marital misconduct or familial
                    negligence be allowed to recover damages in
                    spite of that misconduct or negligence?”
                            Thus the general rule as to the role of
                    intra-family relations is that the right to
                    maintain an action for the wrongful death is not
                    destroyed entirely by less-than-perfect relations
                    between spouses or by misconduct of either
                    spouse so long as it does not culminate in a
                    divorce. Rather, the relationship or misconduct
                    may affect the amount of recovery. The general
                    rule applies whether the benefits in question are
                    defined by statute or determined by precedent.
                    However, an action for compensation for the
                    death of a purported spouse cannot be sustained
                    where the marriage is shown to be invalid.
             2 Stuart M. Speiser et al., Recovery for Wrongful Death § 9.1
             (4th ed. 2005).


                                            5
                      Plaintiff’s (sic) argue that “wrongful death recoveries
              are premised entirely on post-death damages” and based on
              the evidence regarding Laura and Daniel’s marriage they
              assert she cannot show any expectation of future support,
              care, comfort or companionship from Daniel. This argument
              is based largely on speculation about what would have
              happened between Daniel and Laura. While recognizing the
              Plaintiffs[’] evidence regarding the status of the marriage, it
              must also consider the wife’s testimony, and the uncertainty
              as to what would have happened. Of paramount importance
              to this Court is the fact that no divorce was signed or filed and
              the nature and quality of text message, friend and family
              testimony does not resolve the uncertainty in [P]laintiffs[’]
              favor.

[¶12] We agree with the district court’s observation that less-than-perfect relations
between spouses do not destroy the right of a spouse to maintain a wrongful death action
but rather may affect the amount of any recovery. Our concern is with the court’s
analysis following this observation.

[¶13] In evaluating the evidence, the court described the future of the marriage as
speculative and uncertain. It then concluded that the evidence presented by Decedent’s
parents and sister was insufficient to resolve that uncertainty in their favor. Such a
conclusion suggests that there is a presumption of damages in favor of a spouse that other
damage claimants must overcome. As noted above, however, there is no such
presumption under Wyoming’s wrongful death statute, and each damage claimant must
prove his or her claim to damages. Knowles, ¶ 23, 51 P.3d at 866. Thus, if there was an
uncertainty as to any future relationship between Decedent and Laura Soran, that
uncertainty did not shift the burden to the remaining damage claimants to prove that the
relationship probably would have ended. Rather, the burden was on Laura Soran to prove
that despite the uncertainty in the marital relationship, she had suffered a “loss of
probable future companionship, society and comfort.” Wyo. Stat. Ann. § 1-38-102(c)
(emphasis added). Because the court’s decision shows that the court concluded that the
uncertainty in the evidence weighed in favor of the party who bore the burden of proof,
we find that the court erred in its analysis.

[¶14] In so holding, we also reject Laura Soran’s contention on appeal that the district
court properly allocated the burden of proof because the question of the future viability of
Decedent’s marriage, which was a question raised by Decedent’s parents and sister, was
an affirmative defense. First, we note that the district court did not at any point in its
analysis refer to the question as an affirmative defense or treat the question as an
affirmative defense. Moreover, the question of the future viability of Decedent’s



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marriage simply is not an affirmative defense. This Court has defined an affirmative
defense as follows:

                     In pleading, matter asserted by defendant which,
             assuming the complaint to be true, constitutes a defense to it.
             A response to a plaintiff’s claim which attacks the plaintiff’s
             legal right to bring an action, as opposed to attacking the truth
             of claim . . . .

Matter of Corman, 909 P.2d 966, 969 (Wyo. 1996) (quoting Black’s Law Dictionary 60
(6th ed. 1990) (emphasis in original)).

[¶15] The evidence presented by the Decedent’s parents and sister relating to the
Decedent’s marriage was evidence presented to contradict Laura Soran’s claim that she
had suffered damages based on her loss of probable future companionship, society and
comfort. This was evidence directed at the factual basis of Laura Soran’s damages claim,
not an assertion of a legal bar to her claim. Decedent’s parents and sister thus did not
assert an affirmative defense in response to Laura Soran’s damages claim, and the district
court’s shifting of the burden of proof was not justified on this ground.

B.    75% Award to Decedent’s Wife

[¶16] We turn next to the claim of Decedent’s parents and sister that the district court’s
distribution of 75% of the settlement proceeds to Decedent’s wife was clearly erroneous
in light of the evidentiary record. In particular, they argue that Laura Soran’s testimony
that her divorce from Decedent was not imminent was too at odds with other evidence,
including divorce documents and text messages exchanged between Decedent and Laura
Soran, to be considered credible. They further argue that even if Laura Soran’s testimony
were credible, her testimony did little to substantiate that her marriage to Decedent was
likely to continue. To that effect, Decedent’s parents and sister cite, among other
testimony, the following testimony of Laura Soran:

                     Q.    So you were going to get a divorce?
                     A.    I was trying. I didn’t know what I was going to
             do. That would be [a] correct statement of – I don’t know
             what was going to happen.
                     Q.    When you took your name off his bank
             account[,] when he took his name off your bank account[,]
             was that an effort to try to get him to come around or would
             you agree that that’s evidence that the two of you were
             splitting up?




                                             7
                     A.     I would agree that I didn’t know what I was
              going to do, and he had asked me to take myself off the bank
              account. He was asking me to do these things, so I did them.

[¶17] This Court does not substitute its judgment for that of the trier of fact on questions
of witness credibility or the weight evidence should be given. Claman, ¶ 22, 279 P.3d at
1012. Our concern with the district court’s findings and award in this case, however,
does not stem from the weight or credibility determinations the court made. We are
instead concerned with the inconsistencies evident in the court’s findings and rulings.

[¶18] In making the distribution award, the district court explained:

                     In making this determination, the Court considered
              both the degree of the relationship (ie. spousal, parental,
              sibling) and the nature and quality of those relationships, as
              well as the decedent’s likely future involvement in their lives.
              The Court, having listened to the claimants and reviewed the
              exhibits in this matter, concludes that the wife Laura Soran
              should receive 75%, the father Dan Soran 10%, the mother
              Lynette Soran [10%], and the sister Sarah Soren [5%].

[¶19] By this order, the district court declared that Decedent’s wife met her burden of
proving that she was entitled to 75% of the settlement proceeds based on her loss of
“probable” future companionship, society and comfort. See Wyo. Stat. Ann. § 1-38-
102(c). “Probable” means “[h]aving more evidence for than against; supported by
evidence which inclines the mind to believe, but leaves some room for doubt; likely.”
Hamburg v. State, 820 P.2d 523, 529 (Wyo. 1991) (quoting Barrett v. Green River &
Rock Springs Live Stock Co., 205 P. 742, 744 (Wyo. 1922)). If the court’s settlement
distribution were based on a finding that Decedent’s wife had shown that her marriage
was likely to continue, then perhaps we would be less troubled by the court’s award. The
court’s order, however, contains an opposite finding. In particular, the court found that
the future of Decedent’s marriage to Laura Soran was uncertain and speculative. The
decision thus rules on the one hand, that the future of Decedent’s marriage was uncertain
and speculative, but on the other hand, that Decedent’s wife suffered the greater
percentage of damages for loss of “probable” future companionship, society and comfort.

[¶20] This Court cannot reconcile the district court’s conflicting findings—that
Decedent’s marital relationship was uncertain, and that Decedent’s wife was entitled to
an award of 75% of the settlement proceeds for loss of “probable” or “likely” future
companionship, society and comfort. Moreover, the district court made no other or more
specific findings to support its award or to otherwise reconcile the seemingly inconsistent
findings. Given the inconsistencies in the district court’s findings, we are left with a firm
conviction that the court erred. In particular, it is apparent that the court’s error in


                                              8
applying the burden of proof carried through to the distribution of the settlement
proceeds, and the order distributing the settlement proceeds must therefore be reversed.
We remand for entry of a distribution order that is supported by findings sufficient to
show application of the appropriate burden of proof, with no presumption in favor of any
of the damage claimants.

                                    CONCLUSION

[¶21] The district court’s distribution order was clearly erroneous in that it misapplied
the burden of proof and improperly presumed damages in favor of Decedent’s wife. We
reverse and remand for proceedings consistent our direction herein.




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