Christensen v. Christensen, 16459
| Decision Date | 28 October 1980 |
| Docket Number | No. 16459,16459 |
| Citation | 619 P.2d 1372 |
| Parties | Beverly Kay CHRISTENSEN, Plaintiff and Appellant, v. Alfred Brent CHRISTENSEN, Defendant and Respondent. |
| Court | Utah Supreme Court |
B. L. Dart, Jr., and John D. Parken, of Dart & Stegall, Salt Lake City, for plaintiff and appellant.
Walter R. Ellett, Murray, for defendant and respondent.
This is an appeal from an order denying the motion of the plaintiff-appellant to modify a decree of divorce. Affirmed and reversed as indicated.
Plaintiff and defendant were divorced on December 9, 1975, when a decree was entered based upon a stipulation reached between them. Later, on August 12, 1976, plaintiff filed a motion to modify the decree, primarily on the ground that the defendant had misrepresented to her the value of a 52-unit apartment complex which they had acquired and constructed during the marriage, and which was awarded to defendant in the divorce. She claimed that she had relied upon his representations as to the value of that property since she was not well informed on their investments and she was too poor at the time to afford an appraisal.
At the hearing on the plaintiff's motion to modify, the District Court ruled that since plaintiff was seeking to modify the original decree on the basis of fraud discovered more than three months after its entry, her only recourse was through an independent fraud action. Thereafter she filed a civil action sounding in fraud seeking to set aside the award of the apartment complex to the defendant. This fraud action together with her motion for modification were consolidated for trial and the trial was held on February 14, 15, and 16, 1979.
At the trial plaintiff testified that defendant represented to her at the time of the divorce that the apartment complex had cost nearly twice as much to build as anticipated, the mortgage balance was at least equal to its fair-market value and that the rents were barely sufficient to cover the monthly mortgage payment. It is undisputed that in December, 1975, when the decree was entered the mortgage balance was $368,000. The defendant denied in his testimony that he ever told her that the complex had no value and claimed that he told her that it had a gross value of $460,000. Plaintiff produced evidence that less than a month earlier than December, 1975, he had certified in a financial statement that the complex had a fair-market value of $710,000 and that five months after the decree was entered, he listed the property for sale at $950,000 and rejected an offer to sell the property on a contract for $900,000 with $150,000 being paid down. At the trial plaintiff produced an expert witness who testified that the apartment complex was actually worth between $750,000 and $825,000 in December, 1975.
At the trial the Court found that defendant had not fraudulently misrepresented the value of the property to the plaintiff and entered a judgment of "No Cause of Action" in favor of the defendant and against the plaintiff. The court also denied plaintiff's motion to modify the property distribution set forth in the original decree of divorce.
Plaintiff brings this appeal contending that even though defendant's conduct did not constitute fraud, the Court should have modified the original decree and given her part of the equity in the apartment complex in light of the disparity between the actual value of the property and the value she was led to believe that it had at that time.
Plaintiff relies primarily upon the decision of this Court in Kessimakis v. Kessimakis, Utah, 546 P.2d 888 (1976). However, that case dealt with modification of an award of alimony and child support, whereas in the instant case the plaintiff is seeking a modification making a redistribution and reallocation of the equity in a property matter (the apartment complex).
In the recent case of Land v. Land, Utah, 605 P.2d 1248 (1980), this Court stated:
... True it is that, in making a division of property by a decree of divorce a trial court is governed by general principles of equity. It is likewise true that...
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Jensen v. Cannon
...negligence are adequate to wage an independent collateral attack on a judgment.¶38 In this respect, the decision in Christensen v. Christensen , 619 P.2d 1372 (Utah 1980), is noteworthy. There, the court rejected an appellant's attempt to set aside an award of property to her former husband......
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Bayles v. Bayles
...on fraud, she "did not plead a change in circumstances and therefore was not entitled to have the decree modified."); Christensen v. Christensen, 619 P.2d 1372 (Utah 1980) (affirming trial court's ruling that because plaintiff was seeking to modify divorce decree on basis of fraud, plaintif......
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Despain v. Despain, 17034
...610 P.2d 1303 (1980).5 Utah, 605 P.2d 1248, 1250-1251 (1980).6 Also see Chandler v. West, Utah, 610 P.2d 1299 (1980); Christensen v. Christensen, Utah, 619 P.2d 1372 (1980). ...
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Foulger v. Foulger, 16909
...concur in the result, but refer to my dissenting opinions in Despain v. Despain, Utah, 610 P.2d 1303, 1307 (1980) and Christensen v. Christensen, Utah, 619 P.2d 1372 (1980). 1 The trial court also granted plaintiff's motion for an increase in child support payments, from which ruling defend......