Bayles v. Bayles, No. 981347-CA

• Court: Court of Appeals of Utah
• Writing for the Court: DAVIS
• Citation: 981 P.2d 403
• Parties: 367 Utah Adv. Rep. 33, 1999 UT App 128 Jeroldene BAYLES nka Jeroldene Bailey, Plaintiff and Appellant, v. Randee BAYLES, Defendant and Appellee.
• Decision Date: 22 April 1999
• Docket Number: No. 981347-CA

Page 403

981 P.2d 403 367 Utah Adv. Rep. 33, 1999 UT App 128 Jeroldene BAYLES nka Jeroldene Bailey, Plaintiff and Appellant,
v.
Randee BAYLES, Defendant and Appellee. No. 981347-CA. Court of Appeals of Utah. April 22, 1999.

Page 404

Rosalie Reilly, Monticello, for Appellant.

Craig C. Halls, San Jun County Attorney's Office, Blanding, for Appellee.

Before WILKINS, P.J., and DAVIS and JACKSON, JJ.

OPINION

DAVIS, Judge:

¶1 This case is before us on interlocutory appeal. Plaintiff Jeroldene Bayles appeals the trial court's denial of her motion to dismiss defendant Randee Bayles's petition to modify the order of divorce. We reverse.

FACTS

¶2 Plaintiff filed for divorce from defendant in January 1997. During the marriage the parties operated Bayles Exploration, a drilling exploration business. Plaintiff was the bookkeeper of Bayles Exploration and maintained its business records.

¶3 Both parties filed opposing Orders to Show Cause. After a hearing on these motions in February 1997, defendant was temporarily awarded the home, from which the business was run, and the business itself. When defendant later undertook the task of sorting through the business records, he discovered several discrepancies. Defendant identified these discrepancies and communicated them to plaintiff's counsel through a letter drafted by his counsel. This letter provided, in pertinent part:

By this letter, I would like to convey my client's concerns with regard to the Bayles Exploration accounts. Prior to 1996 the parties had been judicious, with Jeroldene handling the bookkeeping, on keeping the business and personal matters separated. It seem[s] that beginning in approximately March, 1996, while Randee paid thousands of dollars into the personal account and Jeroldene made approximately $20,000, all of the personal debts of the parties were paid out of the Bayles Exploration account, including in early 1997, double utility payments and double car payments. The upshot of this is that the corporation has been drained of assets, which we believe should be accounted for and an adjustment made in the settlement.

We have made several requests that Jeroldene turn over the business records, but have failed to receive those documents, and so have drafted discovery to force the issue. I don't believe Jeroldene is entitled to retain the original business records and we may bring this issue before the Court.

At the current time we do not have all of the necessary information with regard to necessary adjustments, however, some of the note-worthy items are:

3000 cash kept in the safe in the home[;]

double payments on the car[;]

double utility payments[;]

frozen beef worth approximately $750 which Jeroldene took[;]

telephone charges for February, March and April charged to Randee's card[;]

credit card charges involving personal items which were paid from business funds[;]

cost of preparation of tax returns[;]

liability for corporate taxes for 1996

We feel that Jeroldene should be responsible for at least half of these items, and from this limited list we believe that amount to be in excess of $3500 (her share). If these items are acknowledged by Mrs. Bayles perhaps the matter can proceed expeditiously.

¶4 The parties ultimately agreed to a property settlement, and a Stipulation was signed at the end of May 1997. The Stipulation particularly mentioned the items outlined in defendant's counsel's letter:

17. Defendant waives any claims against Plaintiff with respect to those items listed

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in Defendant's attorney's letter dated May 7, 1997, to wit:

(a) Three Thousand Dollars ($3,000) cash kept in the safe in the home;

(b) Double payments on the car;

(c) Double utility payments;

(d) Frozen beef worth approximately $750;

(e) Telephone charges for February, March and April, charged to Randee's card;

(f) Credit card charges involving personal items which were paid from business funds;

(g) Cost of preparation of tax return;

(h) Liability for corporate taxes for 1996.

¶5 The Stipulation also required that "Plaintiff ... surrender to Defendant any and all records pertaining to the business which she may have in her possession and have not previously been given to Defendant." ¹

¶6 The Stipulation was approved by the trial court and incorporated into the Findings of Fact and Conclusions of Law and the Order in re Divorce Settlement, which were signed and entered in June 1997.

¶7 The property distribution was problematic. In October 1997, plaintiff filed a motion for an order to show cause, complaining that defendant did not comply with the Stipulation and subsequent order of divorce. Defendant responded by filing a Petition for Modification in November 1997. Defendant's Petition for Modification sought to modify the original property settlement because "Plaintiff took large sums of money out of the corporate bank account in the several months prior to her filing the divorce complaint." Thus, defendant requested he "receive a credit or set-off for said funds against those funds owed by Defendant to Plaintiff as a property settlement."

¶8 Plaintiff filed a Motion to Dismiss Defendant's Petition for Modification, arguing that because defendant was well aware that plaintiff may have misappropriated funds from the business account, the issue was res judicata and was not a substantial change of circumstances, a necessary element for a successful petition to modify a divorce decree. See Hagan v. Hagan, 810 P.2d 478, 483 (Utah Ct.App.1991).

¶9 In its Ruling on Motion to Dismiss, the trial court stated:

Neither party has cited any authority expressly addressing whether a difference between the apparent and actual state of affairs at divorce constitutes a change of circumstances. Logically, it would seem that a difference between reality and apparent reality does not constitute a change in circumstances, only a change in perception. If this is true, Randee's only recourse would...