                  IN THE SUPREME COURT, STATE OF WYOMING

                                            2015 WY 131

                                                                     APRIL TERM, A.D. 2015

                                                                         September 25, 2015

ZYGMUNT JOHN SAMIEC,

Appellant
(Plaintiff),

v.
                                                           S-15-0028
SUSAN KAY HOPKINS,
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 of Eric F. Phillips Law Office, Rock Springs, WY.


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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] In this post-divorce dispute, Zygmunt Samiec (Father) appeals a district court
order requiring him to pay 75% of his daughter’s residential treatment costs. Father
contends that the district court erred in failing to recognize either a written or an implied
agreement between Father and his former wife, Susan Hopkins f/k/a Samiec (Mother), to
split the residential treatment costs equally. Alternatively, Father argues that the district
court should have applied the doctrine of promissory estoppel to find a binding
agreement between Mother and Father to share equally in the costs of their daughter’s
residential treatment. We affirm.

                                          ISSUES

[¶2]   Father states the issues on appeal as:

              a.    Did the Parties have a binding agreement to each pay
              50% of New Haven’s costs?
              b.    Does the doctrine of promissory estoppel create a
              binding agreement between the parties?

                                          FACTS

[¶3] Father and Mother were divorced in December 2009. The parties’ decree of
divorce incorporated a stipulated agreement specifying that Mother would have primary
custody of the parties’ two daughters and Father would have visitation. The stipulated
agreement further provided:
              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] In 2010, one of the parties’ daughters (Daughter) was placed at the Wyoming
Behavioral Institute (WBI) after threatening suicide. Soon thereafter, Father filed a
petition to modify the divorce decree, seeking custody of the parties’ two children. The
parties resolved their custody dispute, but they were unable to agree on how to divide the



                                                1
costs of Daughter’s stay at WBI, and they asked the district court to determine whether
residential treatment should be treated as a counseling cost, which pursuant to the divorce
agreement would be subject to a 50/50 split between Father and Mother, or as a medical
expense, which pursuant to the divorce agreement would require Father to pay 75% of
any uncovered expense.

[¶5] When Daughter completed her six-week stay at WBI in 2010, the question of how
residential treatment costs should be treated under the divorce agreement was still
pending before the district court. After leaving WBI, Daughter continued to experience
difficulties, and Mother and Father eventually agreed to place Daughter in another
residential program, the New Haven Residential Treatment Center in Saratoga Springs,
Utah. Daughter’s stay at New Haven began on April 12, 2011, which was again while
the question of how residential treatment costs should be categorized under the divorce
agreement was still pending before the district court. Daughter ultimately remained at
New Haven until the end of August 2012, and the total cost of her approximately sixteen-
month stay at New Haven was $212,449.00.

[¶6] On April 4, 2012, roughly a year into Daughter’s sixteen-month stay at New
Haven, the district court ruled that residential treatment is a medical expense subject to
the 75/25 cost sharing provision. Father appealed that ruling, and on August 28, 2013,
this Court issued its decision affirming the district court’s decision. See Samiec v.
Fermelia, 2013 WY 101, ¶ 1, 308 P.3d 844, 845 (Wyo. 2013). The question of whether
residential treatment should be considered a counseling cost or a medical expense was
therefore unanswered before Daughter’s admission to New Haven and remained a
pending question throughout her entire sixteen-month stay.

[¶7] When Daughter was admitted to New Haven, Mother and Father signed
enrollment and tuition agreements with New Haven, which specified that Mother and
Father were both jointly and severally liable for the fee obligations under the agreements.
Pursuant to those agreements, Mother and Father were each billed 50% of Daughter’s
tuition on a monthly basis. This meant that by the end of Daughter’s stay, Mother and
Father had each paid $106,224.50 of Daughter’s tuition fees.

[¶8] On January 31, 2014, Mother filed a motion seeking an order to show cause why
Father should not be held in contempt for failing to reimburse Mother $53,112.25 for half
of the costs she paid to New Haven. Mother contended that based on the district court’s
ruling that residential treatment costs were medical expenses governed by paragraph 10
of the parties’ divorce agreement, which ruling was affirmed by this Court, Father was
required to pay 75% of the New Haven costs. Mother argued she was therefore entitled
to reimbursement of the amounts she had paid in excess of her obligation under the
divorce agreement’s 75/25 split for uncovered medical expenses.




                                             2
[¶9] On February 5, 2014, the district court issued an Order to Show Cause and
directed Father to appear on March 25, 2014. Father filed a motion to vacate the show
cause order, arguing that questions of fact concerning whether the parties had an
enforceable agreement to each pay 50% of the New Haven costs required an evidentiary
hearing and precluded the dispute from being resolved as a contempt matter. The district
court then issued an Order Vacating Show Cause Hearing and Ordering Evidentiary
Hearing.

[¶10] On July 1, 2014, the district court held an evidentiary hearing on the question of
whether the parties had an enforceable agreement to share the New Haven costs equally
rather than according to the 75/25 split provided by the parties’ divorce agreement. The
court found no such agreement, concluding first:

             Although the parties had binding contracts with New Haven
             which made them each individually responsible for 50% of
             the total costs, this did not create a binding agreement
             between them to modify the terms of the Stipulation and
             Agreement governing ultimate responsibility for sharing of
             medical costs.

[¶11] The district court then rejected Father’s claims of an implied-in-fact contract to
modify the parties’ divorce agreement. In particular, the court rejected the contention
that Mother’s payment of all amounts billed to her by New Haven evidenced consent to
cost sharing at the rate billed, finding that such payment was consistent with the parties’
past practice of Mother paying medical bills in their entirety and then receiving
reimbursement from Father. The court likewise rejected Father’s promissory estoppel
claim, finding there was no clear and definite agreement to modify the parties’ divorce
agreement, but even if there were, the evidence did not support reasonable reliance by
Father.

[¶12] On October 24, 2014, the district court issued its order implementing its decision.
The order directed Father to reimburse Mother $53,112.25, the amount she paid New
Haven in excess of the 75/25 split dictated by the parties’ divorce agreement. Father
timely filed a notice of appeal to this Court.

                              STANDARD OF REVIEW

[¶13] The district court’s ruling resulted from an evidentiary hearing before the court,
and we therefore review the court’s findings of fact for clear error and its conclusions of
law de novo. Moore v. Wolititch, 2015 WY 11, ¶ 9, 341 P.3d 421, 423 (Wyo. 2015)
(quoting Clark v. Ryan Park Prop. & Homeowners Ass’n, 2014 WY 169, ¶ 6, 340 P.3d
288, 289 (Wyo. 2014)). We have explained:



                                             3
             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.

Moore, ¶ 9, 341 P.3d at 423 (quoting Miner v. Jesse & Grace, LLC, 2014 WY 17, ¶ 17,
317 P.3d 1124, 1131 (Wyo. 2014)).

[¶14] In reviewing the district court’s findings for clear error, “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.” Moore, ¶ 10, 341 P.3d at 423
(quoting Miner, ¶ 17, 317 P.3d at 1131).

                                     DISCUSSION

[¶15] Father contends that the parties agreed to modify the cost allocation provisions of
their divorce agreement both in writing and orally. Alternatively, he argues that the
doctrine of promissory estoppel applies to create a binding agreement on the sharing of
the New Haven costs.

[¶16] We will consider each of Father’s arguments, but before turning to that discussion,
we first address Mother’s opening argument that whether the parties had an enforceable
agreement or not is irrelevant. In particular, Mother asks this Court to ignore any alleged
agreement to modify the divorce decree because it is well settled that a divorce decree
may not be modified by agreement of the parties without court approval. Thus, even if
the parties reached the agreement alleged by Father, that agreement was not approved by
the district court and was therefore of no effect. While Mother’s recitation of the law
governing modification of a divorce decree is generally sound, we disagree that it renders
the parties’ disputed agreement irrelevant.

[¶17] We have recognized the “established principle that the parties to a divorce may not
modify a divorce decree without submitting those modifications to the district court for
its consideration and approval.” Richardson v. Richardson, 868 P.2d 259, 262 (Wyo.
1994) (citing McKenzie v. Shepard, 814 P.2d 701, 702 (Wyo. 1991)). The manner in
which a decree is modified is by petition to the court by either party to the decree. See
Wyo. Stat. Ann. § 20-2-116 (LexisNexis 2015) (district court authority to modify


                                             4
decree’s allowance for a party or children on petition of either party). The decision
whether to grant such a petition for modification is committed to the district court’s
discretion. Schluck v. Schluck, 2008 WY 92, ¶ 2, 189 P.3d 877, 878 n. 2 (Wyo. 2008);
Maher v. Maher, 2004 WY 62, ¶ 6, 90 P.3d 739, 741 (Wyo. 2004).

[¶18] In this case, Father asserted that the parties had an agreement to modify the
divorce agreement provisions governing responsibility for residential treatment costs.
Presumably, if the district court had found such an agreement, the court then would have
been required to decide whether to approve the agreed-upon modification, a decision that,
as noted above, would have been committed to the district court’s discretion. Here, the
district court found no agreement to modify, and it therefore never reached the question
of whether it would approve such a modification. The required court approval for any
modification is thus simply not at issue in this appeal.

[¶19] We turn then to our review of the district court’s rulings on Father’s modification
and promissory estoppel claims.

A.    Modification of the Divorce Agreement

[¶20] Paragraph 14(f) of the parties’ divorce agreement provides that “[n]o modification
or waiver of any of the terms hereof shall be valid unless in writing and signed by both of
the parties.” Father argues that the parties had a written agreement to modify their
divorce agreement in the form of the agreement they signed with New Haven. In the
alternative, Father argues that the parties had an enforceable implied-in-fact agreement.
We find no clear error in the district court’s rejection of both claims.

1.    Written Agreement

[¶21] The record contains two New Haven agreements, the “New Haven Enrollment
Agreement,” and the “New Haven Tuition Financial Agreement.” Both documents bear
the signatures of Mother and Father, who are identified as “Sponsors” under the
agreements. The New Haven Enrollment Agreement identifies the parties to the
agreement as the New Haven and the Sponsor, and it outlines the services New Haven
will provide as well as the other obligations of the parties. In regard to payment of fees,
the Enrollment Agreement contains the following provisions:

             3.     Student Tuition, Program Fees and Enrollment
             Fees. In consideration for the services provided by New
             Haven under this Agreement, the Sponsor agrees that they
             have read, understand, have completed, and have signed the
             Tuition Financial Agreement which is made part of this
             Agreement as Exhibit A, and that they agree to make timely
             payments to New Haven of all program fees and enrollment


                                             5
              fees outlined in the Tuition Financial Agreement. Except as
              otherwise provided in this Agreement (or any Exhibit to this
              Agreement), Sponsor is financially obligated to pay all
              enrollment and program fees for the entire treatment period.
              Sponsor’s total program fee obligations under this Agreement
              will be billed to Sponsor in monthly installments. New
              Haven charges the full daily tuition rate for both the
              Admittance Date and Discharge Date. The program and
              enrollment fees cover only the services provided by New
              Haven as described in Paragraph 2. New Haven will not
              release the official transcripts of the Student’s academic
              credits until all amounts due New Haven under this
              Agreement have been paid in full.
                                          ****
              5.     Insurance Coverage and Arrangements with Third
              Parties. This Agreement is between New Haven and
              Sponsor, and Sponsor is personally responsible for all
              program fees, enrollment fees, and Student costs incurred
              during the Student’s enrollment at New Haven. * * *
                                          ****
              19. Miscellaneous. * * * All obligations of the Sponsor
              under this Agreement are joint and several, as the case may
              be.

[¶22] The New Haven Tuition Financial Agreement outlines the daily and other fees for
Daughter’s enrollment. The Financial Agreement’s opening paragraph provides that
“Sponsor agrees to pay New Haven under the terms of this Tuition Financial
Agreement.” The Agreement also provides in its paragraph 19 that “All obligations of
the Sponsor hereunder shall be joint and several, as the case may be.”

[¶23] The New Haven Enrollment Agreement and New Haven Financial Tuition
Agreement are the only signed agreements addressing responsibility for payment of the
costs for Daughter’s placement at New Haven. By their plain terms, the New Haven
agreements speak only to the obligations between New Haven, on one side, and Mother
and Father, on the other side. The agreements do not reference the divorce agreement
between Mother and Father and do not in any manner purport to address any obligations
between Mother and Father. The New Haven agreements thus cannot be read to be a
written modification of the parties’ divorce agreement, and we find no error in the district
court’s rejection of Father’s written modification claim.




                                              6
2.     Implied-in-Fact Contract

[¶24] As noted above, the parties’ divorce agreement specified that any modification of
the agreement’s terms was not valid unless it was done in writing and signed by both
parties. This Court has long recognized, however, that even a contract with an integration
clause, such as the one in the parties’ divorce agreement, may be modified through oral
agreement or by mutual conduct of the parties if certain conditions are met. See Big-D
Signature Corp. v. Sterrett Props., LLC, 2012 WY 138, ¶ 33, 288 P.3d 72, 80 (citing
Quin Blair Enters. v. Julien Constr. Co., 597 P.2d 945, 951 n. 6 (Wyo. 1979)) (Wyoming
follows general rule that unless a contract is required by law to be in writing, the contract
may be orally modified). The conditions that must be met to orally modify an integrated
agreement are: “First, there must be evidence that the parties orally modified the contract
terms, and second, the parties have taken actions consistent with the new terms.” Big-D,
¶ 33, 288 P.3d at 81.

[¶25] Father argues that the parties modified their divorce agreement through an
implied-in-fact contract. An implied-in-fact contract is one that “may be found to exist as
a matter of fact and is dependent upon the parties’ intent.” Birt v. Wells Fargo Home
Mortg., Inc., 2003 WY 102, ¶ 15, 75 P.3d 640, 649 (Wyo. 2003) (citing Shaw v. Smith,
964 P.2d 428, 435–36 (Wyo. 1998)). It exists where the parties’ conduct supports a
“conclusion that the parties expressed a mutual manifestation of an intent to enter into an
agreement.” Id. (quoting Shaw, 964 P.2d at 435–36). This Court recently described the
process for determining the existence of an implied-in-fact contract:


              [W]e look not to the subjective intent of the parties, but to
              “‘the outward manifestations of a party’s assent sufficient to
              create reasonable reliance by the other party.’” Givens v.
              Fowler, 984 P.2d 1092, 1095 (Wyo.1999) (quoting
              McDonald v. Mobil Coal Producing, Inc., 820 P.2d 986, 990
              (Wyo.1991)). The question is “whether a reasonable man in
              the position of the offeree would have believed that the other
              party intended to make an offer.” Boone [v. Frontier Ref., 987
              P.2d 681 at 687 (Wyo.1999)]. In 1991, we adopted
              Restatement (Second) of Contracts § 19 (1979) for guidance
              in determining whether an implied-in-fact contract exists:
                     “(1) The manifestation of assent may be made wholly
                     or partly by written or spoken words or by other acts or
                     by failure to act.
                     (2) The conduct of a party is not effective as a
                     manifestation of his assent unless he intends to engage


                                              7
                    in the conduct and knows or has reason to know that
                    the other party may infer from his conduct that he
                    assents.
                    (3) The conduct of a party may manifest assent even
                    though he does not in fact assent. In such cases a
                    resulting contract may be voidable because of fraud,
                    duress, mistake, or other invalidating cause.”

             McDonald, 820 P.2d at 990. In essence, an implied-in-fact
             contract may arise where “parties act in a manner conveying
             mutual agreement and an intent to promise....” Worley v.
             Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000).

Symons v. Heaton, 2014 WY 4, ¶ 9, 316 P.3d 1171, 1174-75 (Wyo. 2014) (quoting Birt,
¶ 16, 75 P.3d at 649).

[¶26] Although an implied-in-fact contract may be found based solely on the parties’
conduct, Father alleges both an oral modification of the divorce agreement and conduct
consistent with that modification. Thus, he asserts an implied-in-fact contract that, if
found, would comply with the Big-D requirements for modifying a contract with an
integration clause. Specifically, Father asserts (record citations omitted):

                    Mother offered Father to have their [Daughter] enroll
             in voluntary, residential treatment at New Haven. Father
             accepted the offer. In order to induce Father into accepting
             the offer, Mother represented that she would pay 50% of the
             New Haven costs. Mother knew that Father believed she
             would pay 50% of the New Haven costs. Mother paid 50% of
             the New Haven costs.

[¶27] We find Father’s argument unsupported by the testimony in this case. This is
particularly so in light of our standard of review, which requires that we accept the
evidence of the prevailing party as true and give that party every reasonable inference
that can fairly and reasonably be drawn from it. See Moore, ¶ 10, 341 P.3d at 423.
Viewed in this light, the testimony reveals that Mother and Father both believed that
Daughter needed residential treatment and that Mother accepted the 50% billing for the
New Haven costs while the question of which divorce agreement cost-sharing provision
applied to those costs remained a pending question. The testimony does not support the
inducement scenario asserted by Father.




                                            8
[¶28] Mother testified that after Daughter left WBI, Daughter continued to experience
difficulties, including anxiety and depression, and Daughter again attempted suicide.
Mother further testified:

                    Q.      Prior to going to this intake meeting had you
             had any conversations with [Father] about what you were
             doing?
                    A.      Yes.
                    Q.      What was the general nature of those
             conversations?
                    A.      When [Daughter] told me that she thought she
             needed help, I did get hold of him and said I think this is
             something we need to do. I’m going to go out and see what I
             can find out there. If you have any suggestions, anything you
             would like me to try to figure out along with it, if there is any
             place that you found that you think would be good, let me
             know. And conveyed to him what I found out. And
             essentially we got to New Haven because, I mean, it was
             recommended highly on the internet and by another facility.
                    Q.      Did he indicate he was onboard with New
             Haven?
                    A.      Yes.
                    Q.      Did you discuss at all the cost associated with
             New Haven proper to that – well, tell me first, when exactly
             did this intake meeting take place?
                    A.      April 12, 2011.
                    Q.      April 12, 2011. So prior to that date did you
             guys discuss the cost associated with putting her into this
             program?
                    A.      Yeah. We knew it was going to be really
             expensive.
                    Q.      Did you discuss at all who was going to pay for
             what cost?
                    A.      No.
                    Q.      Was there general discussions, you pay half, I
             pay half, anything like that at all?
                    A.      No. I think that it was assumed by [Father] that
             that’s what would happen, but at that point my daughter
             needed to be in a treatment facility and –
                    Q.      I don’t mean to interrupt you. “It was assumed
             by [Father],” what would make you think he was assuming?
                    A.      Because he never raised anything about how it
             would be split up. Just that as we went and we were


                                             9
presented the paperwork, which was 50/50, that was just
going to be the way it would be.
       Q.     Okay. So when you say you were presented the
paperwork, this was something that happened at that April
intake meeting?
       A.     Yes.
       Q.     Who presented you with this paperwork?
       A.     New Haven.
       Q.     So the staff there?
       A.     Yes.
       Q.     And they just – I mean, was there discussion –
let me be careful of my questions here.
       A.     Okay.
       Q.     Did they ask, or anybody else, how do you guys
want this divided up, 25/70, 50/50, he is paying all of it, you
are paying none of it, anything like that at all?
       A.     Not to my knowledge, no. Essentially that’s
how – in a divorce situation most cases are just presented that
way and so that’s the way they drew up the paper work.
       Q.     So the paperwork that was handed to you, at
least in some sort of documentation, it was clear from that
meeting that you were going to be billed 50 percent, he was
going to be billed 50 percent?
       A.     Correct.
       Q.     At that time did you have any idea whether or
not you were going to get any of that reimbursed or was that
even a consideration?
       A.     At that point, no, I did not. We were waiting,
we knew that the question of whether her psychiatric care was
deemed medical or counseling, that was on the table at that
point and it was not yet – there was not a decision made yet.
So with the intent that we would see how the decision came
up, I would pursue the New Haven cost.
       Q.     So at least at that point you were going to go
with what they presented, each of you paying half?
       A.     Yes.
       Q.     And see kind of where the cards lie or fall when
you go into court and deal with it that way?
       A.     That is correct. Because I knew if I didn’t at
least go along with what was perceived, that [Daughter] –
[Father] would not have agreed for [Daughter] to have
treatment.



                               10
[¶29] Father testified:

                      Q.     When [Daughter] was brought to New Haven,
             what discussions did you have with [Mother] prior to
             placement regarding the need for treatment?
                      A.     Of course I – I being in Rock Springs and
             [Mother] living with [Daughter], I wasn't, call it privy, to all
             that was going on * * * . But I could tell that [Daughter]
             needed – needed some additional help and so I decided that
             that was probably a good idea to have her go to residential
             treatment also.
                      Q.     Did you have a discussion with [Mother]
             regarding those costs?
                      A.     Yeah. We – because we had to find what the
             costs were and then we had to see if insurance was going to
             cover it, so we did have the discussion about how much –
             basically how much it cost.
                      Q.     And you discovered in that process that your
             insurance which was the primary insurance for the children’s
             health care was not going to cover residential treatment?
                      A.     That’s correct.
                      Q.     And you informed [Mother] of that?
                      A.     I did.
                      Q.     Did you then discuss the cost sharing for New
             Haven?
                      A.     No, because I think we already knew that we
             were going to split the costs 50/50. We have been splitting
             counseling costs 50/50 the entire time.
                      Q.     So there was –
                      A.     So it’s pretty straightforward that we would
             split it 50/50 from then on.
                      Q.     So you considered this expenditure to be a
             counseling cost?
                      A.     Yes, because –
                      Q.     And both of you treated it accordingly?
                      A.     Mostly in the residential treatment program she
             was getting schooling, she was getting physical activity, and
             there is very little of it that’s actually –well, almost none of it
             was actually by a doctor. The psychiatrist saw her once a
             month at the most, it was more like once every three months.
             So as part of our divorce decree, and that’s why it was split
             50/50, was that we had been splitting those costs 50/50 even
             before we got completely divorced.


                                              11
                     Q.     Did [Mother] ever provide you any written
             objection to paying that 50 percent fee?
                     A.     No.
                     Q.     Did she ever serve you court papers while
             [Daughter] was at New Haven objecting to paying the 50
             percent fee?
                     A.     No.
                     Q.     And she paid that 50 percent voluntarily during
             all of that period?
                     A.     Correct.
                     Q.     It was paid on a monthly basis by both of you?
                     A.     Yes.
                                           ***
                     Q.     And no one told New Haven to make any other
             split or adjustment during that time period?
                     A.     No. They were told the very first day that the
             costs were split 50/50.
                     Q.     When they were told the costs were split 50/50,
             who made that statement?
                     A.     I’m pretty sure I’m the one that said we are
             splitting these costs 50/50.
                     Q.     Was [Mother] there at the time?
                     A.     Right. * * *

[¶30] On cross-examination, Father further testified:

                     Q.    Just to make sure we are clear, you are not
             disagreeing with the fact that there were no discussions
             between you and [Mother] prior to going to New Haven as to
             who was going to pay what? You assumed it was 50 percent,
             but that was never actually discussed; is that correct?
                     A.    I don’t know that we ever actually discussed it,
             no. But she would have known since insurance wasn’t paying
             it and they were going to split it 50/50 or it was assumed that
             way.

[¶31] Father’s wife, Patricia Samiec, was also present at the April 12, 2011 New Haven
intake meeting. She testified:

                   Q.     What do you recall of that discussion?
                   A.     They brought in the paperwork to be signed and
             only [Father] and [Mother] signed the paperwork, but they



                                            12
              came in and asked how it was to be billed out and they
              responded 50/50.
                     Q.    I'm sorry. Who responded 50/50?
                     A.    Both [Father] and [Mother].
                     Q.    So     both     individuals     expressed   their
              understanding that bills for the residential treatment were to
              be paid 50% by each party?
                     A.    Correct.
                                           ***
                     Q.    Was any objection made to that 50/50 split?
                     A.    No.
                     Q.    Was there any further discussion about it?
                     A.    No.

[¶32] The testimony of the parties, as well as that of Patricia Samiec, indicates that the
sole discussion of how the New Haven costs would be shared between Mother and Father
took place in the April 12, 2011 intake meeting at New Haven. That discussion was one
that concerned how New Haven would bill the parties. It was not a discussion between
Mother and Father during which they orally agreed to modify the terms of their divorce
agreement or even discussed the terms of their divorce agreement.

[¶33] Additionally, while Mother’s testimony reflects her subjective belief that Father
would have balked at the New Haven placement if Mother had not accepted the 50%
billing, it is clear even from Father’s testimony that no promises were made to induce his
agreement to Daughter’s enrollment in the New Haven program. The decision to enroll
Daughter was made before the intake meeting, and while the parties discussed how much
the treatment would cost before that meeting, they did not discuss how those costs would
be shared.

[¶34] In addition to the fact that the parties did not discuss modification of their divorce
agreement, it is important to consider the timing of the New Haven intake meeting. The
intake meeting took place nearly a year before the district court ruled on the parties’
request for a determination of whether residential treatment was considered a counseling
cost, subject to the 50/50 cost sharing, or a medical expense, subject to the 75/25 cost
sharing. Given that the parties did not yet know how the district court would rule on how
residential treatment costs were to be shared under the divorce agreement, and given that
the parties had not withdrawn their request for that interpretation, it would seem
premature for the parties at that point to be agreeing to modify the divorce agreement.

[¶35] The bottom line is that nothing in the parties’ testimony or circumstances reflects a
mutual assent to modify the parties’ divorce agreement. Father himself did not testify to
an agreement outside the divorce agreement and instead testified that he viewed the New
Haven costs as counseling costs subject to the divorce agreement’s 50/50 cost sharing.


                                              13
Mother, conversely, testified that she understood that the district court had not yet ruled
on how residential treatment costs should be treated and was willing to accept the 50%
billing pending the court’s decision. While the question of mutual assent is an objective
one, not based on the parties’ subjective intentions, the views reflected in the parties’
testimony, coupled with the lack of any discussion between Mother and Father as to cost
sharing, makes its objectively unreasonable to find an implied-in-fact agreement to
modify the divorce agreement.

[¶36] Nor do we find objective evidence of a modification in Mother’s payment of the
New Haven costs as billed. Both Mother and Father testified that Mother had in the past
paid bills in their entirety for expenses of the parties’ daughters and then sought and
received reimbursement from Father. The payments themselves were therefore not
necessarily evidence of an agreement to modify the divorce agreement.

[¶37] Based on the foregoing, we find no clear error in the district court’s rejection of
Father’s claim of an implied-in-fact modification of the parties’ divorce agreement. We
turn then to Father’s alternative argument that pursuant to the doctrine of promissory
estoppel, the parties had a binding agreement to share equally in the costs of their
daughter’s enrollment at New Haven.

B.    Promissory Estoppel

[¶38] “Parties to a written contract may agree to change that contract. In the proper
circumstances, the change may be enforced through promissory estoppel.” Baker v.
Ayres & Baker Pole & Post, Inc., 2007 WY 185, ¶ 13, 170 P.3d 1247, 1251 (Wyo. 2007)
(citing Verschoor v. Mountain W. Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1298
(Wyo. 1995)). The elements that must be present to enforce such an agreement through
promissory estoppel are:

             (1) the existence of a clear and definite promise which the
             promisor should reasonably expect to induce action by the
             promisee; (2) proof that the promisee acted to its detriment in
             reasonable reliance on the promise; and (3) a finding that
             injustice can be avoided only if the court enforces the
             promise.

Symons, ¶ 13, 316 P.3d at 1176 (quoting Redland v. Redland, 2012 WY 148, ¶ 91, 288
P.3d 1173, 1194 (Wyo. 2012)).

[¶39] The district court found that Father failed to prove either a clear and definite
promise or reasonable reliance on the alleged promise. Father challenges these findings
as clearly erroneous. He argues that Mother’s signing of the New Haven Enrollment
Agreement was a clear and definite promise to pay 50% of the costs and Father


                                             14
reasonably relied on that promise because Mother in fact made the required payments
pursuant to her 50% agreement. These arguments fail for the same reasons we discussed
above.

[¶40] First, Mother’s signing of the New Haven agreement was a promise to New
Haven, not to Father. As we discussed above, the written agreement defined the parties’
obligations to New Haven and New Haven’s obligations to the parties. The agreement
contained no promises between Mother and Father. Moreover, Father’s testimony
confirmed that Mother had made no other promises concerning the sharing of the New
Haven costs:

                      Q.    Just to make sure we are clear, you are not
              disagreeing with the fact that there were no discussions
              between you and [Mother] prior to going to New Haven as to
              who was going to pay what? You assumed it was 50 percent,
              but that was never actually discussed; is that correct?
                      A.    I don’t know that we ever actually discussed it,
              no. But she would have known since insurance wasn't paying
              it and they were going to split it 50/50 or it was assumed that
              way.

[¶41] Father’s testimony shows that he acted upon an assumption, not a clear and
definite promise. Moreover, given that the parties had a pending request before the
district court to have that court rule on whether residential treatment should be treated as
a counseling cost or a medical expense under the divorce agreement and that the parties
had not withdrawn that request, Father’s reliance on this assumption is less than
reasonable. As for Mother’s payment of the New Haven costs as they were billed to her,
Mother had, again as we also discussed above, made past payments in full and then
requested and received reimbursement from Father. It was therefore not reasonable for
Father to rely on Mother’s payment of the New Haven billings as her assent to the 50%
cost sharing.

[¶42] For these reasons, we find no clear error in the district court’s rejection of Father’s
promissory estoppel claim.

                                     CONCLUSION

[¶43] We find no clear error in the district court’s rejection of Father’s contract and
promissory estoppel claims. Affirmed.




                                              15
