Jense v. Jense, 880016-CA

• Decision Date: 21 December 1989
• Docket Number: No. 880016-CA,880016-CA
• Citation: 784 P.2d 1249
• Parties: Gary W. JENSE, Plaintiff and Respondent, v. Sara A. JENSE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1249

784 P.2d 1249

Gary W. JENSE, Plaintiff and Respondent, v. Sara A. JENSE, Defendant and Appellant.

No. 880016-CA.

Court of Appeals of Utah.

Dec. 21, 1989.

Craig M. Peterson and E. Paul Wood, Salt Lake City, for defendant and appellant.

David S. Dolowitz and Leslie Van Frank, Salt Lake City, for plaintiff and respondent.

Before DAVIDSON, GARFF and GREENWOOD, JJ.

OPINION

GARFF, Judge:

Defendant appeals the trial court's order modifying the parties' decree of divorce and vacating a money judgment for amounts awarded in the decree. We reverse.

Defendant was granted a decree of divorce on July 9, 1986. This decree awarded defendant, in relevant part: (1) $27,750, with twelve percent interest, to "equalize the marital estate"; (2) temporary alimony of $500 per month for one year; and (3) attorney fees of $5,000 and appraisal costs of $670. However, defendant was ordered not to reduce these awards to a final judgment or to enforce payment until April 1, 1987, in order to allow plaintiff time to receive his bonus for the 1986 income year, which was payable in 1987. In addition to other property, plaintiff was awarded the marital home in Pleasant Grove, and all furnishings and personal property in his possession.

On April 1, 1987, the court reduced to judgment amounts accrued under the decree of divorce for alimony, attorney fees, and the property settlement, with interest, for a total of $43,314.46. On April 14, 1987, the court granted plaintiff's motion to stay execution of the judgment for four months.

On June 24, 1987, plaintiff filed a motion requesting the court to set off $10,000 against defendant's judgment for silverware allegedly awarded to him but taken by defendant from a safety deposit box at Deseret Bank.

On August 3, 1987, plaintiff requested that the court amend the decree of divorce and vacate the judgment against him because of changed circumstances.

On August 24, 1987, the trial court heard plaintiff's motions. Defendant's counsel consented to go forward with the motion for set-off on the basis of proffers of evidence and affidavits, but objected to consideration of the motion to amend the divorce decree without discovery, oral testimony by witnesses, or other standard evidentiary proceedings. Overruling defendant's objections, the trial court proceeded to hear both motions on proffers and affidavits.

The court held that there had been a significant change of circumstances in that: (1) plaintiff failed to receive a bonus in 1987; (2) he lost his job in July 1987; (3) the Pleasant Grove home declined in value; and (4) between the original divorce hearing and the entry of the decree, defendant had removed the silverware from the parties' safety deposit box. The court found that the change in circumstances thwarted its intent to equalize the marital estate in the divorce decree, resulting in defendant being awarded more than half of the estate. This, the court found, required modification of the decree of divorce and the April 1, 1987 judgment. To equalize the estate, the court awarded the silverware and the net proceeds of the sale of the Pleasant Grove home to defendant. The court held that this new award satisfied all prior awards and judgments payable to defendant by plaintiff.

SILVERWARE

Defendant appeals the trial court's decision to set off $10,000 against her money judgment on the finding that the silverware was awarded to plaintiff in the decree and was taken by defendant from the parties' safety deposit box after the entry of the decree.

Rule 52(a) of the Utah Rules of Civil Procedure provides, in part:

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

In Western Kane County Special Serv. Dist. No. 1 v. Jackson Cattle Co., 744 P.2d 1376, 1377 (Utah 1987), the Utah Supreme Court stated that, under this standard, "we do not set aside the trial court's factual findings unless they are against the clear weight of the evidence or we otherwise reach a definite and firm conviction that a mistake has been made." See also Utah R.Civ.P. 52(a); State v. Walker, 743 P.2d 191, 193 (Utah 1987); Schmidt v. Downs, 775 P.2d 427, 429 (Utah Ct.App.1989).

Here, the clear weight of the evidence is against the findings of the trial court. The property settlement awards plaintiff all items of personal property currently in his possession. The evidence clearly shows that the silverware was not in plaintiff's possession at the time the divorce action was initiated. Plaintiff makes no assertion that the silverware was in the safety deposit box at the time of the divorce decree on July 9, 1986. Defendant, on the other hand, clearly establishes that the silverware was not in the safety deposit box but in her possession at that time, and that she put plaintiff on notice of that fact. In her answer to plaintiff's interrogatory of May 24, 1985, defendant states that there are no items in the safety deposit box, and that plaintiff has the keys. This is confirmed by the unrefuted affidavit of Kay L. Jacobs, president of Deseret Bank, who stated that the last recorded visit to the safety deposit box was on March 22, 1985.

Because the silverware was not in plaintiff's possession at the time of the decree, he is not entitled to it. Therefore, the trial court's finding that defendant wrongly took possession of the silverware after the decree is clearly erroneous, and there is no basis for the $10,000 set-off against defendant's judgment.

MODIFICATION OF DECREE

Defendant also argues that the trial court abused its discretion or misapplied the law in granting a modification of the decree of divorce and vacating the April 1, 1987 judgment.

The standard of review for this court to overturn a trial court's modification of a decree of divorce is a showing that "the evidence clearly preponderates against the findings or that the trial court has abused its discretion." Thompson v. Thompson, 709 P.2d 360, 362 (Utah 1985); see also Porco v. Porco, 752 P.2d 365, 367 (Utah Ct.App.1988). In this case, we find both circumstances.

To obtain a modification of a divorce decree, the movant must show a substantial change of circumstances subsequent to the decree, that was not originally contemplated within the decree itself. Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985) (per curiam); Thompson, 709 P.2d at 362. In addition, when a substantial change in circumstances is shown, it must relate to the basis upon which the original award was made by the trial court. Mineer v. Mineer, 706 P.2d 1060, 1062 (Utah 1985).

In the August 1987 hearing, the trial court stated that the awards in the original decree of divorce were based upon the presumption that plaintiff was going to receive a big bonus in 1987. Although we give great deference to the trial court's findings and do not overturn them unless clearly erroneous, Utah R.Civ.P. 52(a); Walker, 743 P.2d at 193, a close examination of the record reveals that this finding is clearly erroneous.

The...