Colombo v. Walker Bank & Trust Co.

• Decision Date: 14 October 1971
• Docket Number: No. 12292,12292
• Citation: 489 P.2d 998,26 Utah 2d 350
• Parties: d 350 Frank V. COLOMBO, Jr., a minor, by Virginia Von Storch, as Guardian of his person and estate, Plaintiff and Appellant, v. WALKER BANK AND TRUST COMPANY, a Utah corporation, Defendant and Respondent.
• Court: Utah Supreme Court

Page 998

489 P.2d 998

26 Utah 2d 350

Frank V. COLOMBO, Jr., a minor, by Virginia Von Storch, as Guardian of his person and estate, Plaintiff and Appellant, v. WALKER BANK AND TRUST COMPANY, a Utah corporation, Defendant and Respondent.

No. 12292.

Supreme Court of Utah.

Oct. 14, 1971.

James B. Lee and Edward J. McCarthy of Parsons, Behle & Latimer, Salt Lake City, for plaintiff-appellant.

Thorit Hatch, Helper, for defendant-respondent.

CALLISTER, Chief Justice.

Plaintiff, as guardian of the person and estate of her minor son, Frank V. Colombo, Jr., initiated this action to enforce her creditor's claim, which the administrator of her former husband's estate had rejected. The claim was premised on a decree of divorce, wherein plaintiff was awarded judgment against Frank V. Colombo, Sr., for the support and maintenance of their minor child, Frankie, in the sum of $150 per month, until the further order of the court.

The trial court held that the decree of divorce did not provide a continuing award of support money from the estate of Frank V. Colombo in the event of death, and, on the contrary, by the provision for substantial insurance proceeds to his son in the event of his death, contemplated no such continuing claim for support. The court further held that because of materially altered circumstances occurring since the entry of the decree of divorce, it would be improper and unjust do order continuing support from the estate of the deceased. The factors cited as indices of changed circumstances were: (a) the minor received an inter-vovos transfer of property valued at approximately $4500 from his father; (b) the minor had received substantial life insurance benefits from a policy on the life of his father 'accrued benefits valued at $21,000); (c) the minor, through intestate succession, would receive one fourth of his father's estate (the net estate was estimated to have a value of $200,000); and (d) the minor was receiving survivorship benefits under Social Security.

Defendant was awarded judgment, and plaintiff appeals citing error of the trial court on three gounds. First, the obligation of child support, continuing 'until further order of the court,' survives as a claim against the father's estate. Second, the decree, properly construed, does not express an intention to discharge the obligation of child support by means of the insurance proceeds. Third, there is insufficient evidence to support the determination that the circumstances have materially changed since the entry of the decree of divorce.

In Murphy v. Moyle, ¹ the issue was whether, under the law, the trial court had the power to enforce support payments for a minor child pursuant to a decree of divorce against the estate of the father. The administrator of the estate asserted that an award for the support of a minor child could not be enforced after the death of the father. This court responded that such rule does not apply to a decree of divorce granted under the statute (Section 2606, Comp.Laws Utah, 1888) of this State. In such a case whether the minor is entitled to have the payment of support continue after the death of the father depends on the nature and terms of the decree of divorce. This court observed that under the aforementioned statute the trial court has the power to make such a decree as the circumstances warrant.

It concluded with a statement that it could not sanction the administrator's contention, which was at variance not only with the decree of the court and the law but also with justice, for it is the solemn duty of every father to support his children during their minority, suitably to their station in life, and if he fails to do so, every principle of justice demands that they be thus supported out of his estate.

Section 30--3--5, U.C.A.1953, as amended 1969, has the same effect, although the specific language differs, as Section 2606, Comp.Laws Utah, 1888, it provides:

When a decree of divorce is made, the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable. The court shall have continuing jurisdiction to make such subsequent changes or new orders with respect to the support and maintenance of the parties, the custody of the children and their support and maintenance, or the distribution of the property as shall be reasonable and necessary.

Under the present statutory enactment, the doctrine of Murphy v. Moyle is still valid and subsisting law, namely, the trial court has the power to enforce support payments for a minor child pursuant to a decree of divorce against the estate of the father. ²

In those jurisdictions where it has been held that the trial court has the power to decree the continuance of support payments after the parent's death, there...