IN THE SUPREME COURT, STATE OF WYOMING

                                        2016 WY 103

                                                            OCTOBER TERM, A.D. 2016

                                                                   October 27, 2016

IN THE MATTER OF THE
GUARDIANSHIP OF MKH, Minor
Child.

BRENDA CLARK,

Appellant
(Respondent),                                        S-16-0062

v.

AARON HUFFER,

Appellee
(Petitioner).

                    Appeal from the District Court of Laramie County
                      The Honorable Catherine R. Rogers, Judge

Representing Appellant:
      Rhonda S. Woodard of Wolf, Tiedeken & Woodard, PC; and Susan Feinman, Law
      Office of Susan L Feinman, Cheyenne, WY. Argument by Ms. Woodard.

Representing Appellee:
      Bernard Q. Phelan, Cheyenne, WY.

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

[¶1] Brenda Clark, the grandmother and court-appointed guardian of MKH, appeals a
district court decision vacating her 2005 and 2006 guardianship appointments. The
district court declared the guardianship orders void for lack of subject matter jurisdiction
because the original order appointed Ms. Clark guardian of MKH before the child was
born. We reverse.

                                         ISSUES

[¶2]   Ms. Clark states the issues on appeal as follows:

                      1.    In March 2005, did the district court have
              subject matter jurisdiction to enter the Order Appointing
              Guardian for an unborn child who was due to be born within
              a few weeks?
                      2.    If the district court did not have subject matter
              jurisdiction when the Order Appointing Guardian was
              entered, is the 2006 Order Extending Guardianship, which
              was entered after the birth of MKH, in effect?

                                         FACTS

[¶3] On February 23, 2005, Brenda Clark filed a Petition for Appointment of Guardian
in the district court for Laramie County. The petition requested that the court appoint
Ms. Clark to be the guardian of her unborn granddaughter “from the time the proposed
ward is born until further order of the Court.” In support of the request, the petition
recited, in part:

                      1.     The proposed ward, [Baby H], will be born
              sometime during the next six weeks and will be a minor under
              the laws of this State.
                      2.     The proposed ward cannot reside with his or her
              natural mother, Stephanie L. Urbigkit, as she is incarcerated
              at Laramie County Detention Center, Cheyenne, Wyoming.
              Stephanie L. Urbigkit's consent to the appointment of the
              Petitioner as guardian of the proposed ward will be filed
              herein.
                      3.     The proposed ward cannot reside with his or her
              natural father, Aaron J. Huffer, [home address omitted], as he
              is unable and unwilling to assume the responsibility of caring
              for a newborn child. Aaron J. Huffer’s consent to the



                                              1
             appointment of the Petitioner as guardian of the proposed
             ward will be filed herein.
                   4.      The Petitioner is Stephanie L. Urbigkit’s mother
             and will be the maternal grandmother of the proposed ward.
             The Petitioner resides at [street address omitted], Cheyenne,
             Wyoming.

[¶4] On the same date the guardianship petition was filed, Aaron J. Huffer (hereinafter
Father) and Stephanie L. Urbigkit (hereinafter Mother) each filed a Consent to
Appointment of Guardian. Father’s consent stated, “I hereby consent to the appointment
of the baby’s maternal grandmother, Brenda K. Clark, as guardian of the person of the
proposed ward from the time he or she is born until further order of the Court.” Mother’s
consent similarly stated, “I hereby consent to the appointment of my mother, Brenda K.
Clark, as guardian of the person of the proposed ward from the time he or she is born
until further order of the Court.”

[¶5] On March 2, 2005, the district court, the Hon. Dan Spangler presiding, entered an
Order Appointing Guardian. The order recited the following findings:

                     1.    [Baby H] will be born to Stephanie L. Urbigkit
             sometime during the next six weeks.
                     2.    Stephanie L. Urbigkit is a resident of Laramie
             County, Wyoming and, at the time of his or her birth, [Baby
             H] will also be a resident of Laramie County, Wyoming.
                     3.    At the time of his or her birth, [Baby H] will be
             a minor under the laws of this State.
                     4.    [Baby H] has no legally appointed guardian or
             conservator.
                     5.    A guardian of the person should be appointed
             for [Baby H].
                     6.    [Baby H’s] natural mother, Stephanie L.
             Urbigkit, is currently incarcerated at the Laramie County
             Detention Center, Cheyenne, Wyoming. She has consented
             to having Brenda K. Clark, the Petitioner herein, appointed as
             guardian of the person of [Baby H] from the time [of] his or
             her birth. Said consent has been filed herein.
                     7.    [Baby H’s] natural father, Aaron J. Huffer, has
             also consented to having Brenda K. Clark, the Petitioner
             herein, appointed as guardian of the person of [Baby H]. Said
             consent has been filed herein.
                     8.    Brenda K. Clark is a fit and proper person to
             serve as guardian of the person of [Baby H].



                                            2
[¶6] Following the recitation of findings relating to the need for a guardian, the Order
Appointing Guardian directed that: “Brenda K. Clark be, and she hereby is, appointed
guardian of the person of [Baby H].” On the same day the Order Appointing Guardian
was entered, the district court also entered a supplemental order detailing the guardian’s
reporting obligations and the types of duties assumed by the guardian with her
appointment.

[¶7] In 2005, Baby H was born and given the name MKH. On June 6, 2005, Father’s
aunt, Darlene Trejo-Caine, filed a motion to set aside the order appointing Ms. Clark as
guardian of MKH. Ms. Trejo-Caine alleged that she had been appointed as temporary
guardian of MKH’s siblings and that she was the more suitable person to be appointed as
MKH’s guardian. Ms. Clark responded to the motion, stating, in part:

                    6.     On March 16, 2004, Darlene Trejo-Cain was
             appointed as temporary guardianship (sic) of the ward’s
             siblings. She allowed her appointments to expire and moved
             the ward’s siblings into hiding. She moved the Court for
             extensions of the guardianships of the ward’s siblings only
             after Brenda K. Clark petitioned the Court for guardianship of
             the ward’s siblings after Darlene Trejo-Cain’s temporary
             guardianship of them had expired and she had moved them
             into hiding. * * *
                    7.     * * * At this time, motions are pending in the
             guardianship matters of the ward’s siblings to have Brenda K.
             Clark appointed as guardian of the ward’s siblings and the
             children’s parents have filed their consents to said
             appointments therein.

[¶8] On August 23, 2005, in response to these motions, the district court, the Hon.
Peter G. Arnold presiding, appointed a guardian ad litem who served as guardian ad litem
for all three children. On February 21, 2006, the guardian ad litem submitted a report to
the court recommending that Ms. Clark be appointed as MKH’s permanent guardian, and
that Ms. Trejo-Cain be appointed as permanent guardian of MKH’s two siblings. On
May 3, 2006, the district court, the Hon. Peter G. Arnold still presiding, entered an Order
Extending Guardianship, which directed that “[t]he appointment of Brenda K. Clark as
guardian of the person of [MKH] shall be extended until further order of the Court or the
need for the appointment no longer exists.”

[¶9] The 2006 Order Extending Guardianship was a comprehensive order, detailing
over the course of five pages the district court’s findings concerning the need for the
guardianship of MKH and the guardian’s obligations and powers. The order summarized
the need for the guardianship in its first two findings:



                                             3
                      1.      [MKH] is a resident of Laramie County,
              Wyoming and is a minor under the laws of this State.
                      2.      Neither of the ward’s natural parents is able to
              care for her due to their use of illegal drugs and their related
              illegal activities.

[¶10] The record contains no record of any further action on the guardianship of MKH
until late 2012. On November 28, 2012, Father filed a Petition to Terminate
Guardianship. As grounds for the petition, Father alleged that his circumstances had
changed, he was fit to have custody of MKH, and there was no longer a need for the
guardianship of MKH. Ms. Clark opposed the petition, but before any ruling could be
made on the petition, the court, still the Hon. Peter G. Arnold presiding, ordered the
withdrawal of Mr. Huffer’s attorney on grounds he had an apparent conflict of interest in
representing Mr. Huffer. The order removing Mr. Huffer’s attorney was entered on April
3, 2013, and the court also vacated the hearing that had been set on the petition to allow
Mr. Huffer time to retain new counsel.

[¶11] The record again reflects no action on the guardianship of MKH until 2014. On
August 14, 2014, Father filed a Petition for an Order Vacating “Order Appointing
Guardian” as Void Ab Initio; or, in the Alternative, that the Guardianship Be Terminated.
On September 4, 2014, Ms. Clark filed her response to the petition and requested that the
petition be denied. Mother also filed a response to the petition and requested that the
petition be denied or in the alternative, if the court found grounds to terminate the
petition, that she be awarded custody of MKH.

[¶12] On June 11, 2015, several months after filing his petition to vacate the 2005 order,
Father filed a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. By
his motion, Father argued the district court did not have jurisdiction to enter its 2005
order appointing Ms. Clark as MKH’s guardian because MKH was not yet born and he
requested that the 2005 order be declared void and that MKH be returned to her natural
parents. Ms. Clark opposed the motion, arguing that the court had subject matter
jurisdiction when it entered the 2005 order and, alternatively, that the 2006 order ratified
the 2005 order.

[¶13] On January 5, 2016, the district court, the Hon. Catherine R. Rogers presiding,
entered an order granting Father’s motion to dismiss for lack of jurisdiction. The court
reasoned:

                     Father is correct in his assertion that the Court lacked
              subject matter jurisdiction to enter the 2005 ORDER
              ESTABLISHING GUARDIAN. Neither “ward” nor “minor”, as
              those terms are defined in Wyo. Stat. Ann. § 3-1-101,
              explicitly applies to unborn children. “Ward” is simply an


                                              4
individual for whom a guardian or conservator has been
appointed. Wyo. Stat. Ann. § 3-1-101(xv). “Minor” means
an unemancipated individual under the age of majority, that
is, eighteen (18) years old. Wyo. Stat. Ann. 3-1-101(xvi). It
is clear that this definition is meant to distinguish between
adults and children, not to determine when a fetus becomes an
individual.
        * * * Because Title 3 did not provide statutory
authority for the Court to enter the 2005 ORDER, the Court
lacked subject matter jurisdiction. The 2005 ORDER is void
and has no effect for any purpose.
                              ****
        The Guardian asserts that if the 2005 ORDER is valid,
then the 2006 Order ratified the original 2005 ORDER. In the
alternative, the Guardian argues that if the 2005 ORDER is
void, then the 2006 ORDER serves as the initial ORDER
ESTABLISHING GUARDIANSHIP.
        Although the Guardian provides a definition of
ratification, she fails to cite any authority to justify her
argument that the 2006 ORDER ratified the 2005 ORDER. In
fact, the concept of ratification is inapplicable to this situation
because “ratification is an agency concept that ‘retroactively
creates the effects of actual authority.’” Velasquez v.
Chamberlain, 209 P.3d 888, 894 (Wyo. 2009). The present
case does not concern a question of agency. Rather, the issue
before the Court is whether the Court had subject matter
jurisdiction to enter the 2005 ORDER.
                              ****
        The Guardian’s ratification argument fails twofold.
First, this case does not concern agency. When the Court
entered the 2005 ORDER, it did not act as an agent on behalf
of a principal. None of the parties to the action acted for the
benefit of a principal agent and, therefore, agency principles
do not apply. Second, the 2006 ORDER cannot ratify the 2005
ORDER because the Court lacked subject matter jurisdiction to
establish the guardianship in 2005. Because it is not possible
to ratify an act that could not have been legally accomplished
in the first place, the 2006 ORDER could not have ratified the
2005 ORDER. As a result, the concept of ratification does not
apply to this case.




                                 5
[¶14] On January 28, 2016, Ms. Clark timely filed her Notice of Appeal to this Court. 1

                                   STANDARD OF REVIEW

[¶15] The record does not indicate why Father’s 2015 challenge to the 2005 Order
Appointing Guardian came in the form of a Rule 12(b)(1) motion to dismiss. While
subject matter jurisdiction may be challenged at any point, once a final order has been
entered, the challenge is generally by appeal or by the filing of a Rule 60(b)(4) motion.
See In the Interest of MFB, 860 P.2d 1140, 1146 (Wyo. 1993) (citing 5A Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure: Civil, § 1350 at 200–05
(1990)) (“A challenge to subject matter jurisdiction may be asserted at any time by any
interested party before final judgment, or in a motion for relief from judgment under
W.R.C.P. 60(b), or on appeal after being overruled below.”). Although Father cast his
motion as a Rule 12(b)(1) motion and the district court ruled on the motion as such, we
view the court’s order as more akin to a Rule 60(b)(4) order setting aside a judgment as
void for lack of jurisdiction. We will therefore review the order according to our
standard of review for a Rule 60(b)(4) order:

                       “The granting or denying of relief pursuant to
                W.R.C.P. 60(b) is a matter within the discretion of the trial
                court, and our review is limited to the question of whether
                there has been an abuse of discretion.” State ex rel. TRL by
                Avery v. RLP, 772 P.2d 1054, 1057 (Wyo.1989). When a
                judgment is attacked pursuant to Rule 60(b)(4), however,
                there is no question of discretion in granting or denying
                relief—either the judgment is void, or it is valid. Id. Once that
                determination is made, the trial court must act accordingly.
                Id. “A judgment is not void merely because it is erroneous. It
                is void only if the court that rendered it lacked jurisdiction of
                the subject matter, or of the parties, or if it acted in a manner
                inconsistent with due process of law.” Wright, Miller &
                Kane, Federal Practice and Procedure: Civil 2nd § 2862, at
                326–29 (1995) (footnotes omitted); see also, In Interest of
                WM, 778 P.2d 1106, 1110 (Wyo.1989).

Linch v. Linch, 2015 WY 141, ¶ 10, 361 P.3d 308, 311 (Wyo. 2015) (quoting Teton
Builders v. Jacobsen Constr. Co., 2004 WY 147, ¶ 6, 100 P.3d 1260, 1263 (Wyo. 2004)).

[¶16] We are also guided by our standard of review for guardianship matters:

1
 The record indicates that at the time the district court heard argument on Father’s Rule 12(b)(1) motion,
a separate action to terminate Father’s parental rights to MKH, filed by Ms. Clark, was pending before the
district court in Laramie County. We do not know the status of that proceeding.


                                                    6
                        We presume the district court’s findings of fact are
                correct and will not set them aside unless the findings are
                inconsistent with the evidence, clearly erroneous or contrary
                to the great weight of the evidence. Additionally, we review a
                district court’s conclusions of law de novo.... Construction of
                the guardianship statutes involves a question of law which we
                review de novo.

In re Guardianship of Lankford, 2013 WY 65, ¶ 14, 301 P.3d 1092, 1098 (Wyo. 2013)
(quoting In re DMW, 2009 WY 106, ¶ 10, 214 P.3d 996, 998 (Wyo. 2009)).

                                           DISCUSSION

[¶17] The district court held that the 2005 guardianship order was void for lack of
subject matter jurisdiction because the order appointed Ms. Clark guardian of MKH (then
Baby H) before her birth. We have some doubt as to whether the district court intended
with its 2005 order to impose a guardianship over Baby H before her birth. 2 The order
did, however, make the guardianship of Baby H effective immediately, on a date that
clearly preceded the child’s birth, and it contained no limitation on the scope of the
guardianship as it pertained to the child’s unborn status. We will therefore treat the 2005
order as if it appointed a guardian for an unborn child.

[¶18] We will first address the question whether Wyoming’s guardianship statutes
authorize a court to appoint a guardian for an unborn child. We will then turn to the
question whether the district court is without subject matter jurisdiction to act on a
petition for appointment of a guardian for a child that is filed prior to that child’s birth.

A.      Guardianship over Unborn Child

[¶19] “Guardianship matters are controlled and governed exclusively by statute.” In re
Guardianship of MEO, 2006 WY 87, ¶ 18, 138 P.3d 1145, 1150 (Wyo. 2006) (citing
State ex rel. Klopotek v. Dist. Court, 621 P.2d 223, 227 (Wyo. 1980)). The question
whether a guardian may be appointed for an unborn child must therefore be answered by
2
  Our doubts concerning the intended scope of the 2005 order stem from the circumstances surrounding
the guardianship appointment. First, Ms. Clark’s guardianship petition did not request an appointment
over the unborn child. The petition requested that her appointment take effect upon the child's birth.
Second, the court’s 2005 supplemental order, which detailed the guardian’s responsibilities, seemed to
contemplate a guardianship that would begin after the child’s birth. The 2005 supplemental order made
no reference to obligations before the child’s birth, and the duties of the guardian listed in the
supplemental order were preceded by the statement: “In addition to assuming custody of the ward, a
guardian shall determine and facilitate the least restrictive and most appropriate and available residence
for the ward.” Obviously, the guardian would not be taking custody of the child before her birth. It
seems apparent that the court’s intent with the 2005 appointment was not to ensure a guardianship over
the unborn child but rather to ensure that a guardian would be in place upon the child’s birth.


                                                    7
resort to Wyoming’s guardianship statutes, which we interpret according to our
established rules of interpretation:

                   In any question of statutory interpretation, our primary
             objective is to give effect to the legislature’s intent. L & L
             Enters. v. Arellano (In re Arellano), 2015 WY 21, ¶ 13, 344
P.3d 249, 252 (Wyo.2015). “Where legislative intent is
             discernible a court should give effect to the ‘most likely, most
             reasonable, interpretation of the statute, given its design and
             purpose.’” Adekale, ¶ 12, 344 P.3d at 765 (quoting Rodriguez
             v. Casey, 2002 WY 111, ¶ 20, 50 P.3d 323, 329 (Wyo.2002)).
             In light of this objective, we have said:

                  We therefore construe each statutory provision in
                  pari materia, giving effect to every word, clause,
                  and sentence according to their arrangement and
                  connection. To ascertain the meaning of a given
                  law, we also consider all statutes relating to the
                  same subject or having the same general purpose
                  and strive to interpret them harmoniously. We
                  presume that the legislature has acted in a
                  thoughtful and rational manner with full knowledge
                  of existing law, and that it intended new statutory
                  provisions to be read in harmony with existing law
                  and as part of an overall and uniform system of
                  jurisprudence. When the words used convey a
                  specific and obvious meaning, we need not go
                  farther and engage in statutory construction.

             Nicodemus v. Lampert, 2014 WY 135, ¶ 13, 336 P.3d 671,
             674 (Wyo.2014) (citing Estate of Dahlke ex rel. Jubie v.
             Dahlke, 2014 WY 29, ¶¶ 36–37, 319 P.3d 116, 125–26
             (Wyo.2014)).

Robert L. Kroenlein Trust ex rel. Alden v. Kirchhefer, 2015 WY 127, ¶ 22, 357 P.3d
1118, 1126 (Wyo. 2015).

[¶20] Pursuant to Wyoming’s guardianship statutes, a petition for appointment of a
guardian may be filed if the proposed ward is a minor, an incompetent person, or a
mentally incompetent person. Wyo. Stat. Ann. § 3-2-101(a)(ii) (LexisNexis 2015). The
question here is whether an unborn child is a “minor.” Based on the statutory definition
of the term, we conclude the answer to that question is no.



                                             8
[¶21] The guardianship statutes define the term “minor” to mean “an unemancipated
individual under the age of majority as defined by W.S. 14-1-101(a).” Wyo. Stat. Ann. §
3-1-101(a)(xvi) (LexisNexis 2015). Wyo. Stat. Ann. § 14-1-101(a), in turn, defines the
age of majority in the following terms:

                      Upon becoming eighteen (18) years of age, an
              individual reaches the age of majority and as an adult
              acquires all rights and responsibilities granted or imposed by
              statute or common law, except as otherwise provided by law.

Wyo. Stat. Ann. § 14-1-101(a) (LexisNexis 2015).

[¶22] We agree with the district court’s reasoning that this definition is meant to
distinguish between adults and children and has no meaning with respect to an unborn
child. This interpretation is further borne out by the remainder of Wyo. Stat. Ann. § 14-
1-101, which directs itself to health care decisions a minor may make for him or herself.
See Wyo. Stat. Ann. § 14-1-101(b) (“A minor may consent to health care treatment to the
same extent as if he were an adult when any one (1) or more of the following
circumstances apply * * *.”). The term “minor” is used to connote limitations on an
individual’s capacity to act independently and without adult supervision, and the term’s
statutory definition reflects no intention by the legislature to have the term include an
unborn child.

[¶23] This conclusion is further confirmed when we look to the guardianship statutes as
a whole. There are no doubt issues that could arise between the guardian of an unborn
child and the mother carrying that unborn child that are unique to that circumstance, such
as medical decisions that may affect a mother and her unborn child differently. The
guardianship statutes, however, provide no direction on such matters. See, e.g., Wyo.
Stat. Ann. § 3-2-201 (LexisNexis 2015) (setting forth powers and duties of guardian).
Reading the statutes as a whole, then, we are again unable to find any legislative intent to
include an unborn child in the definition of “minor,” or to otherwise allow for the
appointment of a guardian for an unborn child.

[¶24] Because the guardianship statutes do not authorize the appointment of a guardian
for an unborn child, the district court erred in appointing a guardian for MKH before her
birth. As we discuss next, however, it does not necessarily follow that the district court
was without jurisdiction to act in this matter or that the 2005 order was void for lack of
subject matter jurisdiction.

B.     Subject Matter Jurisdiction

[¶25] We have observed the competing policies implicated when a challenge to a final
order is not raised until long after the order’s entry and the time for an appeal has passed:


                                              9
              The legal principles invoked to determine the issues raised in
              this case are summarized in Kansas City Southern Railway
              Company v. Great Lakes Carbon Corporation, 624 F.2d 822
              (8th Cir.1980), cert. denied 449 U.S. 955, 101 S. Ct. 363, 66
L. Ed. 2d 220 (1980). The essence of that summary is that a
              judgment is void only when there has been a plain usurpation
              of power, or the extension of jurisdiction beyond the scope of
              the court’s authority. That is to be distinguished from an error
              in the exercise of the jurisdiction of the court, which must be
              addressed by appeal rather than a motion under Rule 60(b).
              The competing policies are a disciplined observance of
              jurisdictional limits coupled with the need for finality of
              judgments. If the court concludes that the challenge is simply
              to an erroneous interpretation of the statutory grant of
              jurisdiction, then, in favor of the policy of certainty and
              finality, the judgment becomes final unless appealed.

Linch, ¶ 18, 361 P.3d at 314 (quoting Jubie v. Dahlke (In re Estate of Dahlke ), 2014 WY
29, ¶ 46, 319 P.3d 116, 127 (Wyo. 2014)).

[¶26] We are thus concerned in this case with whether the district court acted outside its
jurisdictional authority in entering its 2005 order or merely erred in its exercise of its
lawful jurisdiction. If it is the former, we must declare the order void. If it is the latter,
the order will stand.

[¶27] Subject matter jurisdiction refers to a court’s “power to hear and determine the
matter in controversy between the parties.” Linch, ¶ 17, 361 P.3d at 313 (quoting Brush
v. Davis, 2013 WY 161, ¶ 9, 315 P.3d 648, 651 (Wyo. 2013)). “A court has subject
matter jurisdiction when it has the authority to consider and decide ‘cases of the general
class of which the proceeding belongs.’” Id., ¶ 17, 361 P.3d at 313-14 (quoting Brush,
¶ 9, 315 P.3d at 651).

[¶28] Wyoming district courts “are endowed with broad subject-matter jurisdiction” and
are “courts of superior and general jurisdiction.” Christiansen v. Christiansen, 2011 WY
90, ¶ 5, 253 P.3d 153, 155 (Wyo. 2011). With respect to guardianships, in particular, a
district court may appoint a guardian as follows:

                     (a) The court may appoint a guardian if the allegations
              of the petition as to the status of the proposed ward and the
              necessity for the appointment of a guardian are proved by a
              preponderance of the evidence.



                                               10
                    (b) The order appointing a guardian shall state the
             findings of the court, including:
                    (i) The reasons why the ward is in need of a guardian;

                           (ii) The appointment of the guardian;
                           (iii) The duration of the appointment for a
                    specified term or permanent, subject to W.S. 3-3-1101;

                           (iv) The limited or plenary duties of the
                    guardian.

Wyo. Stat. Ann. § 3-2-104 (LexisNexis 2015).

[¶29] There is no question that the district court could have appointed a guardian for
MKH to take effect upon the child’s birth. Ms. Clark’s petition established the need for
the appointment, and upon her birth, MKH’s status was as a minor. The court’s error in
entering its 2005 order was its failure to delay the effective date of the appointment. We
have held that a Rule 60(b)(4) motion to set aside a judgment as void for lack of subject
matter jurisdiction will be granted in only:

             the exceptional case in which the court that rendered
             judgment lacked even an “arguable basis” for jurisdiction.
             Nemaizer v. Baker, 793 F.2d 58, 65 (C.A.2 1986); see, e.g.,
             [U.S. v.] Boch Oldsmobile[, Inc.,], supra [909 F.2d 657], at
             661–662 [ (C.A.1 1990) ] (“[T]otal want of jurisdiction must
             be distinguished from an error in the exercise of jurisdiction,
             and ... only rare instances of a clear usurpation of power will
             render a judgment void” (brackets and internal quotation
             marks omitted)).

Linch, ¶ 19, 361 P.3d at 314 (quoting United Student Aid Funds, Inc. v. Espinosa, 559
U.S. 260, 271, 130 S. Ct. 1367, 1377, 176 L. Ed. 2d 158 (2010)).

[¶30] An error in the effective date of a guardianship appointment does not rise to the
level of a jurisdictional defect. The district court had jurisdiction to act on the 2005
petition and simply erred in its exercise of that jurisdiction.

[¶31] Finally, we also agree with Ms. Clark that the 2006 Order Extending Guardianship
remains a valid order. This is not a question of the 2006 order ratifying the 2005 order.
The 2006 order was effectively a new appointment of Ms. Clark as the guardian of MKH.
In entering the 2006 order, the district court made new findings of the need for the



                                             11
guardianship and outlined the guardian’s obligations in even more specific detail than did
the original 2005 order. The 2006 order thus remains in effect.

                                    CONCLUSION

[¶32] Under Wyoming’s guardianship statutes, an unborn child is not included in the
definition of a “minor,” and therefore a court may not appoint a guardian for an unborn
child. The error in the original 2005 Order Appointing Guardian was, however, an error
only in the effective date of the appointment and did not rise to the level of a
jurisdictional defect. The decision of the district court declaring the 2005 and 2006
orders void is reversed.




                                             12