King v. King, 12056
| Decision Date | 11 December 1970 |
| Docket Number | No. 12056,12056 |
| Citation | 478 P.2d 492,25 Utah 2d 163 |
| Parties | d 163 Esther B. KING, Plaintiff and Respondent, v. Lawrence M. KING, Defendant and Appellant. |
| Court | Utah Supreme Court |
K. Samuel King, Salt Lake City, for defendant and appellant.
McCullough & McCullough, Leland S. McCullough, Salt Lake City, for plaintiff and respondent.
Appeal from the district court's denial of what is termed 'Defendant's Motion for Amendment of Judgment, Or In The Alternative For A New Trial,' in proceedings supplemental to a divorce. The parties were married in 1949 when the plaintiff was 37 and the defendant 24 years of age. After 16 years of marriage, in 1965, the plaintiff was awarded an uncontested decree of divorce in which the defendant had filed a consent and waiver. She was given the most substantial part of the family assets, the family home in which they had an equity of about $12,000 to $14,000 together with the furniture, the parties each getting one automobile, the defendant assuming the family debts and being required to pay alimony of $250 per month until the home debt was paid off, and $200 per month thereafter.
In July 1967, there was a strike at Kencott Copper Company, where defendant was employed, which lasted until March 1968. During those months the defendant got behind in his payments of alimony. In September, 1967, plaintiff initiated proceedings against the defendant for contempt and for reduction of the arrearage to judgment. This was finally entered in the amount of $1,475, and the defendant was ordered to pay it off at $15.00 per month. Pursuant to that proceeding there was filed on the defendant's behalf an order to show cause why the alimony should not be reduced. It does not appear that there was any formal hearing on this latter motion until July of 1969, when evidence was adduced concerning the then circumstances of the parties as compared to the time of the divorce.
The defendant, who is a 23-year employee of Kennecott, had about the same income of between $470 and $490 per month. He had remarried to a woman with four minor children by a previous marriage, but who is supposed to receive $150 per month for child support from her former husband; and $115 per month from Social Security. (It is not disputed that this taking on of a new family obligation is subordinate to his prior obligation to the plaintiff.)
The important issue at the hearing related to the condition of the plaintiff's health. At the time of the divorce she had been suffering from a nervous disorder and also some trouble with her back, for which she had been seeing physicians and a psychiatrist. The original findings stated as a basis for the alimony award:
That the Plaintiff is under doctor's care for a nervous condition and is unable at the present time to secure or hold employment, and that it is reasonable and proper that Defendant pay alimony to Plaintiff for her support and care in the amount of $250.00 per month, * * *
At the hearing in July 1969, there was introduced in evidence letters from her doctor, Wallace E. Hess. One dated July 10, 1968, stated that she had had corrective surgery for her lower back in March of 1968, from which she had made a good recovery; that she was to be rechecked in three months to see if the vertebral fusion was solid, in which event she could resume normal work. In another letter about a year later, June 17, 1969, Dr. Hess stated that:
* * * she had an excellent postoperative result of an L5--S1 fusion * * *. She is capable of doing everything but the heaviest of lifting. If one were to rate her as to permanent impairment, her permanent partial impairment as loss of body function would be approximately 10%.
Other testimony shows without dispute that plaintiff had engaged in normal housework and other activities; and that she had held two or three different jobs for short periods of time. She stated that she had not had any psychiatric care since 1968, and that she had made several attempts to find a job since her back operation and would agree to a reduction of alimony if she got a job.
It seems plainly apparent that after the hearing there was some kind of an understanding or a misunderstanding as to some reduction in the alimony. On July 21, 1969, counsel who then represented the plaintiff, Mr. Mitsunaga, sent a letter of the trial judge in which he stated:
Enclosed please find an order which I have prepared in connection with King v. King Mr. King (attorney for defendant) and I have talked the matter over and it appears that there can be no adjustment other than the order which is enclosed. The order is enclosed on the basis of our conversation, the order recites that the payment shall remain in the sum of $250.00, except that $50.00 shall be applied toward the arrearage owed by the defendant. In essence this reduces the alimony to $200.00 per month.
After the arrearage has been paid by the defendant the amount of alimony payments is to be reduced to $150.00 per month. This is the understanding which had (sic) with regard to the Court's intentions.
It will be seen from that letter, particularly the emphasized words, that plaintiff's own counsel acknowledged that according to his understanding of what the court said, there should be a reduction of the alimony from $250 per month to $200 per month, with the $50 being applied toward the arrearages owed by the defendant until the arrearages were paid, and then the alimony to be $150 per month. The order submitted with the letter was never signed. On October 28, 1969, defendant's counsel, apparently acting on the assumption that the order had been signed, filed a motion to amend This motion was an anomaly because what it referred to as a 'Judgment' and sought to amend had never in fact been signed by the court. At the time that motion was set for hearing the following exchange took place:
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...and prerogative of this Court to review both the facts and the law. Humphreys v. Humphreys, Utah, 520 P.2d 193 (1974); King v. King, 25 Utah 2d 163, 478 P.2d 492 (1970); Utah Constitution, Art. VIII, § 9. However, it is likewise true that on review this Court will accord considerable defere......
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King v. King, 12579
...to provide for alimony in a nominal sum. No costs awarded. CALLISTER, C.J., and HENRIOD, ELLETT and CROCKETT, JJ., concur. 1 25 Utah 2d 163, 478 P.2d 492. ...