                 IN THE SUPREME COURT, STATE OF WYOMING

                                        2017 WY 75

                                                         APRIL TERM, A.D. 2017

                                                                   June 21, 2017

IN THE MATTER OF THE ESTATE OF
ROBERT S. MEEKER, Deceased.

ROBIN MEEKER GASTON, MISTY S.
OXBORROW, and DUSTIN D.
MEEKER,

Appellants
                                                     S-16-0250
(Petitioners),

v.

CAROLE L. WAGNER,

Appellee
(Respondent).

                    Appeal from the District Court of Sheridan County
                        The Honorable William J. Edelman, Judge

Representing Appellants:
      Letitia Carole Abromats of Letitia C. Abromats, P.C., Greybull, Wyoming.

Representing Appellee:
      Benjamin Scott Kirven of Kirven and Kirven, P.C., Buffalo, Wyoming.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.




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KAUTZ, Justice.

[¶1] Appellants Robin Meeker Gaston, Misty S. Oxborrow and Dustin D. Meeker (the
Meeker children) are the surviving children of the decedent, Robert S. Meeker. They
contested Mr. Meeker’s will, which left the bulk of his estate to Appellee Carole L.
Wagner. When the Meeker children filed their petition to set aside the probate of the
will, they also filed a motion for change of judge under the peremptory disqualification
provision in W.R.C.P. 40.1. The district court denied the motion for peremptory
disqualification as untimely and granted summary judgment to Ms. Wagner on the merits.
On appeal, the Meeker children challenge the district court’s order denying their request
for peremptory disqualification of the district judge and its order granting summary
judgment in favor of Ms. Wagner.

[¶2] We conclude that the district court erred by denying the Meeker children’s request
for a change of judge. Consequently, we reverse and remand.

                                              ISSUE

[¶3] The dispositive issue in this case is: Whether the district court erred by refusing to
grant the Meeker children’s Rule 40.1(b)(1) motion for peremptory disqualification of the
assigned judge.

                                             FACTS1

[¶4] In 2010 and 2011, Mr. Meeker executed a number of estate planning documents,
including a durable power of attorney, advance health care directive, and will. He
appointed Ms. Wagner, his long time companion, as his agent in the durable power of
attorney and advance health care directive. He also named her as personal representative
of his estate and devised the bulk of his estate to her.

[¶5] In late 2014, Mr. Meeker moved into a long-term care center in Sheridan,
Wyoming. The Meeker children were unhappy with the facility and did not believe that
Ms. Wagner was acting in Mr. Meeker’s best interests, so they filed an action for
guardianship and conservatorship. The district court denied the Meeker children’s
requests.

[¶6] Mr. Meeker died on September 6, 2015, and on October 27, 2015, Ms. Wagner
petitioned for probate of his will and to be appointed personal representative of his estate.
The clerk of court issued a notice assigning one of the two judges in the Fourth Judicial

1
 We recite these facts only to provide background for the procedural issue addressed herein and do not
mean to imply that any disputed facts are established as a matter of law. Upon remand, the newly
assigned judge will consider all substantive matters anew.
                                                  1
District to the probate. The judge assigned to the probate had presided over the earlier
guardianship/conservatorship action. Ms. Wagner published notice of the probate and
also sent notice to the Meeker children by certified mail. The notice stated that an action
to set aside the will must be filed within three months of the date of the first publication
of the notice, which was November 6, 2015. On January 29, 2016, the Meeker children
filed a petition to deny admission of the will to probate, claiming Ms. Wagner exerted
undue influence over their father and he lacked testamentary capacity to execute the will.
On that same date, they also filed a motion for peremptory disqualification of the
assigned judge.

[¶7] Ms. Wagner filed a motion for summary judgment on the Meeker children’s will
contest. The district court denied the Meeker children’s request for change of judge,
concluding that it was not timely under Rule 40.1(b)(1), and granted Ms. Wagner’s
motion for summary judgment on the will contest. The Meeker children appealed.

                               STANDARD OF REVIEW

[¶8] The Meeker children challenge the district court’s denial of their motion for
peremptory disqualification of the judge. They claim the district court erred when it
concluded their motion was not timely under Rule 40.1. “We review the district court’s
interpretation of the rules of civil procedure de novo.” JN v. RFSG (In re Paternity of
HLG), 2016 WY 35, ¶ 7, 368 P.3d 902, 904 (Wyo. 2016), citing Dishman v. First
Interstate Bank, 2015 WY 154, ¶ 13, 362 P.3d 360, 365 (Wyo. 2015); Windham v.
Windham, 2015 WY 61, ¶ 12, 348 P.3d 836, 840 (Wyo. 2015). In interpreting rules of
procedure, this Court applies the same principles used in statutory construction. Cotton v.
McCulloh, 2005 WY 159, ¶ 14, 125 P.3d 252, 257 (Wyo. 2005). Initially, we ascertain
whether the language of the rule is ambiguous. If it is not, we apply its plain language.
Busch v. Horton Automatics, Inc., 2008 WY 140, ¶ 13, 196 P.3d 787, 790 (Wyo. 2008).
“We begin by making an inquiry respecting the ordinary and obvious meaning of the
words employed, according to their arrangement and connection. We construe the [rule]
as a whole, giving effect to every word, clause, and sentence, and we construe together
all parts of the [rule] in pari materia.” Id.

                                      DISCUSSION

[¶9]   When this controversy arose, Rule 40.1 stated in part:

              (b) Change of Judge. ---

                      (1) Peremptory Disqualification. A district judge may
              be peremptorily disqualified from acting in a case by the
              filing of a motion requesting that the judge be so disqualified.
              The motion designating the judge to be disqualified shall be

                                             2
filed by the plaintiff within five days after the complaint is
filed; provided, that in multi-judge districts, the plaintiff must
file the motion to disqualify the judge within five days after
the name of the assigned judge has been provided by a
representative of the court to counsel for plaintiff by personal
advice at the courthouse, telephone call, or a mailed notice.
The motion shall be filed by a defendant at or before the time
the first responsive pleading is filed by the defendant or
within 30 days after service of the complaint on the
defendant, whichever first occurs, unless the assigned judge
has not been designated within that time period, in which
event the defendant must file the motion within five days
after the name of the assigned judge has been provided by a
representative of the court to counsel for the defendant by
personal advice at the courthouse, telephone call, or a mailed
notice. One made a party to an action subsequent to the filing
of the first responsive pleading by a defendant cannot
peremptorily disqualify a judge. In any matter, a party may
exercise the peremptory disqualification one time and against
only one judge. This rule, and the procedures set forth herein,
shall not apply to criminal cases or proceedings in juvenile
court.
       (2) Disqualification for Cause. Whenever the grounds
for such motion become known, any party may move for a
change of district judge on the ground that the presiding
judge: (A) has been engaged as counsel in the action prior to
being appointed as judge; (B) is interested in the action; (C) is
related by consanguinity to a party; (D) is a material witness
in the action; or (D) is biased or prejudiced against the party
or the party’s counsel. The motion shall be supported by an
affidavit or affidavits of any person or persons, stating
sufficient facts to show the existence of such grounds. Prior to
a hearing on the motion any party may file counter-affidavits.
The motion shall be heard by the presiding judge, or at the
discretion of the presiding judge by another judge. If the
motion is granted, the presiding judge shall immediately call
in another judge to try the action.
       ....
       (5) Probate Matters. In any controverted matter arising
in a probate proceeding, a change of judge, or in cases where
a jury is demandable, a transfer of trial, or both, may be had

                                3
               for any cause authorizing such change in a civil action. The
               procedure for such change shall be in accordance with this
               rule. Except for the determination of such controverted
               matter, the judge having original jurisdiction of such probate
               proceeding shall retain jurisdiction in all other matters in
               connection with said proceeding.

Rule 40.1 (2015).2

       1. Is Peremptory Disqualification of a Judge Available in Probate Matters?

[¶10] Before we examine whether the district court correctly ruled that the Meeker
children’s motion for peremptory disqualification was not timely under Rule 40.1(b)(1),
we will address another aspect of the rule. The question is whether, under Rule
40.1(b)(5), peremptory challenges are available in probate actions given the rule does not
refer to peremptory challenges and states that a change of judge is available “for any
cause authorizing such change in a civil action.”

[¶11] Rule 40.1(b)(5) states that in “any controverted matter arising out of a probate
proceeding, a change of judge . . . may be had for any cause authorizing such change in a
civil action.” This language is clear and unambiguous. It does not say a change of judge
in probate matters may only be allowed for the causes set out in subsection (b)(2), and it
does not say that peremptory challenges are not available. At the time this issue was
pending in the district court, we had expressly prohibited use of peremptory
disqualification for juvenile and criminal cases. Rule 40.1(b)(1) (2015). See also,
Wyoming Supreme Court orders dated December 4, 2012, (juvenile) and November 26,
2013, (juvenile and criminal). The same prohibitions are included in the text of the
current version of the rule. Rule 40.1(b)(1)(D) (LexisNexis 2017). If the intent of Rule
40.1(b)(5) was to prohibit use of peremptory disqualification in probate cases, the rule
would have specifically so stated. We do not add language to a statute or rule in the
process of interpretation. See, e.g., City of Casper v. Holloway, 2015 WY 93, ¶ 20, 354
P.3d 65, 71 (Wyo. 2015) (stating that we do not insert language into a statute that the
legislature chose not to include).

[¶12] Furthermore, we must read the “may be had for any cause” language in context
with the remainder of the language in Rule 40.1(b)(5). The last sentence of the provision
states: “Except for the determination of such controverted matter, the judge having
original jurisdiction of such probate proceeding shall retain jurisdiction in all other
matters in connection with said proceeding.” Id. The rule is consistent with Wyo. Stat.
Ann. § 2-2-110 (LexisNexis 2015):

2
 Effective March 1, 2017, the Wyoming Rules of Civil Procedure were repealed and replaced in their
entirety.
                                                4
                When the judge before whom probate matters are brought is
                interested as next of kin to the decedent, or as the legatee or
                devisee under the will, or has any other interest in the
                outcome of, or concerning the matters brought before him, he
                shall call in some other district judge to hear and determine
                all such matters. Being a witness to a will does not itself
                disqualify a district judge, after the will has been probated,
                from hearing any matters concerning the will or the estate
                being probated except matters relating to the admission of the
                will to probate and contests thereon, and the granting of
                letters testamentary or of administration thereunder.

The purpose of both Rule 40.1(b)(5) and § 2-2-110 is to recognize that a probate judge
who is disqualified for cause in a controverted matter is not necessarily disqualified from
presiding over other aspects of the probate. Given that purpose and the fact that Rule
40.1 does not expressly prohibit peremptory disqualification of judges in probate matters,
the Meeker children were entitled to request peremptory disqualification of the judge in
the will contest.

        2. Was the Meeker Children’s Motion for Peremptory Disqualification of the
           Judge Timely?

[¶13] We now consider the question presented on appeal—whether the district court
properly denied, as untimely, the Meeker children’s motion for peremptory
disqualification of the judge. The district court concluded that the Meeker children’s
motion was not timely under Rule 40.1(b)(1):

                       It appears to me that the rule contemplates that my [sic] party
                is on notice as to the identity of the judge, the clock begins ticking
                then.
                       It appears to me that all of the [Meeker children] had
                received notice of the case’s assignment to me in early
                November, and their subsequent motion was filed in January
                and therefore not timely and I’m going to deny the request.

[¶14] In order to determine whether the district court was correct, we need to consider
Rule 40.1 in the context of a will contest. Under Wyo. Stat. Ann. §§ 2-6-201 and 202
(LexisNexis 2015), the person named as executor in a will files a petition for probate.
After the probate is commenced, the personal representative3 is charged with giving

3
  In the Wyoming Probate Code, the term “personal representative” includes executors for testate estates and
administrators for intestate estates. Wyo. Stat. Ann. § 2-1-301(a)(xxviii) (LexisNexis 2015).

                                                     5
notice of the probate by publication and also by mail to all heirs at law and beneficiaries
named in the will. Wyo. Stat. §§ 2-7-201 and 2-7-205 (LexisNexis 2015). “The notice
shall state that any action to set aside the probate of the will shall be brought within three
(3) months from the date of the first publication of the notice or thereafter be banned.”
Section 2-7-201. Any interested person may contest the will by filing a petition prior to
the three month deadline. Wyo. Stat. Ann. § 2-6-301 (LexisNexis 2015).

[¶15] The procedure for a will contest is essentially the same as any civil action. The
contestant files a petition “containing his allegations against the validity of the will or
against the sufficiency of the proof, and praying that the probate be revoked.” Section 2-
6-301. After filing his petition to revoke the probate, the contestant serves the executor
of the will with a summons and the petition. “The summons, service and proceedings
shall be governed by the Wyoming Rules of Civil Procedure.” Wyo. Stat. Ann. § 2-6-
302 (LexisNexis 2015). By requiring a person who wishes to contest a will to follow the
procedure for initiation of a new civil action, the statutes demonstrate that a will contest
is separate from the probate of the will.

[¶16] We recognized the distinction between probate and a will contest in Russell v.
Sullivan, 2012 WY 20, ¶ 14, 270 P.3d 677, 680 (Wyo. 2012). We stated that “a will
contest is ‘collateral’ to the petition to submit the will to probate.” Id. See also Merrill v.
Dist. Ct. of Fifth Jud. Dist., 73 Wyo. 58, 272 P.2d 597 (Wyo. 1954); Wood v. Wood, 25
Wyo. 26, 164 P. 844 (1917). Although the probate and will contest are necessarily
related, they are separate proceedings. Russell, ¶ 14, 270 P.3d at 680. By ruling that the
deadline for the Meeker children to submit their request of peremptory disqualification in
the will contest depended upon when they received notice of which judge was assigned to
the probate, the district court failed to recognize the probate and will contest were
separate actions.

[¶17] The Meeker children claim that, as petitioners, they are the plaintiffs in the will
contest and their motion for peremptory disqualification of the judge was timely because
they filed it within five days after filing the petition to set aside the probate as required by
Rule 40.1(b)(1). In contrast, Ms. Wagner asserts that, by filing the petition for probate,
she became the plaintiff and her certified mailing of the petition for probate to the
Meeker children on November 2, 2015, amounted to “service of the complaint on the
defendant[s]” under Rule 40.1(b)(1). She claims the Meeker children were required to
file their motion for peremptory disqualification “within 30 days after service” of the
petition.4 Rule 40.1(b)(1).

[¶18] Like the district court, Ms. Wagner fails to recognize that a will contest is
collateral to the probate. She did not become the “plaintiff” for purposes of the will

4
 Ms. Wagner would allow the Meeker children an additional three days to respond under W.R.C.P. 6(d)
because the notices were mailed to them.
                                                6
contest when she filed the petition for probate because commencement of the probate did
not equate to commencement of the will contest. In Wood, 164 P. at 851, we recognized
the distinction between the probate and the will contest and identified the will contestant
as the plaintiff. See also In re Morton’s Est., 428 P.2d 725, 728 (Wyo. 1967) (identifying
the parties as: “plaintiff-contestants” and “proponent-defendants”); Russell, ¶ 22, 270
P.3d at 682 (characterizing those challenging the will as plaintiffs); Matter of Est. of
Obra, 749 P.2d 272 (Wyo. 1988) (characterizing will contestants as plaintiffs and
personal representative as defendant). But see Melcher v. Benson (In re Est. of McLean),
2004 WY 126, 99 P.3d 999 (Wyo. 2004) (although the personal representative was
designated as the plaintiff, the party alignments were confused because the case involved
three different actions (two probate actions and a separate civil action) consolidated into
one). Similarly, 95 C.J.S. Wills § 516 (2017) states that in an action to set aside a will,
the contestant is the plaintiff: “Where a will has been submitted for probate, a plaintiff
challenging the will must avail themselves (sic) of the statutory remedy of a will contest
to prove or set aside the instrument.” We, therefore, conclude that, for purposes of
applying Rule 40.1, the will contestants are considered plaintiffs.

[¶19] The Meeker children’s will contest was commenced upon filing the petition to
revoke the probate of the will. Rule 40.1 required the Meeker children, as
petitioners/plaintiffs, to file their motion for preemptory disqualification within five days
after filing their petition because, by that time, the judge had already been assigned to the
probate. The Meeker children timely filed their motion to peremptorily disqualify the
assigned judge when they filed it the same day they filed their will contest.

[¶20] Once a proper motion for peremptory disqualification is filed, the challenged
judge must assign the case to another judge. In fact, his jurisdiction is limited to the
reassignment; he cannot take any other action in the case. See Pawlowski v. Pawlowski,
925 P.2d 240, 243 (Wyo. 1996); Osborne v. Dist. Ct. of Ninth Jud. Dist., 654 P.2d 124,
127 (Wyo. 1982). See also Olsten Staffing Servs., Inc. v. D.A. Stinger Servs., Inc., 921
P.2d 596 (Wyo. 1996) (even a party in default may peremptorily disqualify a judge). All
other rulings and orders issued by a disqualified judge are void. Olsten, 921 P.2d at 601.

[¶21] In the case at bar, the district court erred when it denied the Meeker children’s
motion for peremptory disqualification. Upon the proper filing of the motion for
peremptory disqualification under Rule 40.1(b)(1), the district court was required to
assign the matter to another district court judge. Given it had no jurisdiction beyond
reassigning the case, the district court’s grant of summary judgment in favor of Ms.
Wagner is void.

[¶22] Reversed and remanded.




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