Kinsman v. Kinsman

• Decision Date: 12 January 1988
• Docket Number: No. 860051-CA,860051-CA
• Citation: 748 P.2d 210
• Parties: Lynette KINSMAN, Plaintiff and Respondent, v. John Lee KINSMAN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 210

748 P.2d 210

Lynette KINSMAN, Plaintiff and Respondent, v. John Lee KINSMAN, Defendant and Appellant.

No. 860051-CA.

Court of Appeals of Utah.

Jan. 12, 1988.

Brad L. Swaner (argued), Salt Lake City, for defendant and appellant.

David S. Dolowitz (argued), Parsons, Behle & Latimer, Salt Lake City, for plaintiff and respondent.

Before JACKSON, BENCH and DAVIDSON, JJ.

OPINION

DAVIDSON, Judge:

Defendant appeals from the order and judgment modifying a decree of divorce. The modification was based on a significant change in circumstances and awarded alimony to plaintiff for a period of five years. The decree of divorce, however, provided that neither party was entitled to alimony.

The parties were married for approximately three years with no children born to the union. Both parties brought substantial assets into the marriage. The provisions of the decree of divorce were largely adopted from a settlement agreement executed on July 13, 1982, in which the parties stipulated to waive alimony. ¹

The decree of divorce divided the marital property and adjusted the financial burdens pursuant to the terms of the stipulation. Defendant was ordered to assume certain payments which relieved plaintiff of specific debts and obligations apparently with the intent of restoring plaintiff to her earlier financial position. Within nine months after the divorce, defendant had filed for business and personal bankruptcy and ceased making payments for the benefit of plaintiff thus causing her to assume those financial responsibilities.

The trial judge found a significant change of circumstances caused by the bankruptcy of defendant and on that basis awarded alimony to plaintiff. Defendant filed this appeal questioning the award after an express waiver of the right to receive alimony.

In her brief, plaintiff seeks further modification of the order to delete the durational limitation on the alimony award. Plaintiff also requests that she be awarded costs and attorney fees in accordance with the settlement agreement of July 13, 1982. Because plaintiff did not file a timely and proper cross appeal, we will not now address these issues raised for the first time in her appellate brief. Matter of Estate of Lewis, 738 P.2d 617 (Utah 1987).

At the time the decree was modified, Utah Code Ann. § 30-3-5(1) (1984) provided that: "The court shall have continuing jurisdiction to make such subsequent changes or new orders with respect to the support and maintenance of the parties...." However, a party who brings an action to modify a divorce decree "must initially show that a substantial change in the circumstances of at least one of the parties has occurred." Jeppson v. Jeppson, 684 P.2d 69, 70 (Utah 1984), and cases cited therein. The court found such a change and based its decision on that change. But, to base the award of alimony on changed circumstances ignores the finality of the terms of the stipulation which should only be overturned "with great reluctance and for compelling reasons." Land v. Land, 605 P.2d 1248, 1251 (Utah 1980).

We decline to hold that a change of circumstances can overcome a knowing and specific waiver in a stipulation. ² When the facts of this case are examined, however, two alternate theories for relief are presented. Neither of these theories was presented to the trial court. However, "we may affirm a trial court's decision on proper grounds even though different than those relied upon by the trial court." Branch v. Western Petroleum Inc., 657 P.2d 267, 276 (Utah 1982).

In Beckmann v. Beckmann, 685 P.2d 1045 (Utah 1984), the Utah Supreme Court examined a situation very similar to this case. Defendant was discharged in bankruptcy subsequent to a divorce decree in which he was ordered to make payments on debts and to hold his wife harmless from them as described in a settlement agreement adopted by the court. At the hearing on his order to show cause, defendant argued that he had been discharged from liability. The trial court found the debts were in the nature of alimony, maintenance and support and, as such, were not dischargeable in bankruptcy. The Utah Supreme Court affirmed. In the instant case, the trial court was not asked to address the issue of whether or not the obligations were in the nature of alimony, maintenance and support. It is probable that such an examination would place at least some of defendant's obligations to plaintiff in the above category. ³

Affirmance is based on a contract theory. These parties negotiated and agreed upon terms to settle their divorce action and entered into a stipulation incorporating those terms. A stipulation is an enforceable agreement if it meets the requirements of formality outlined in Brown v. Brown, 744 P.2d 333 (Utah App.1987). Among other terms, defendant specifically agreed to assume and pay certain debts for the benefit of plaintiff. Plaintiff agreed to waive any right to receive alimony "now and forever." Plaintiff's promise, however, was conditioned on the performance by defendant of paying the agreed bills. His performance was required as a condition precedent to plaintiff's waiver of alimony in the future. When defendant willfully avoided his required performance through bankruptcy, he failed to perform the condition precedent. See Stewart v. Underwood, 704 P.2d 275, 278 (Ariz.App.1985) (discharge in bankruptcy does not constitute payment of the debt.) Having failed to perform, he now seeks to enforce the agreement against plaintiff. Such a result will not be tolerated. Failure of a material condition precedent relieves the other party of any obligation to perform. Fischer v. Johnson, 525 P.2d 45 (Utah 1974). The stipulated agreement is no longer enforceable against plaintiff. The court is placed in the position as if there had been no agreement and no distribution of property. The court should look to the present condition and needs of the parties and enter judgment accordingly. This is exactly what the trial court did in making the award of alimony.

This Court will not disturb the trial court's award of alimony unless a clear and prejudicial abuse of discretion has been shown which is not the case herein. Eames v. Eames, 735 P.2d 395, 397 (Utah App.1987); Petersen v. Petersen, 737 P.2d 237 (Utah App.1987).

The order and judgment modifying decree of divorce is affirmed. Costs on appeal against defendant.

BENCH, J., concurs.

JACKSON, Judge (concurring in result only):

Our state legislature significantly amended Utah Code Ann. § 30-3-5 in 1969. Twelve years later, our supreme court gave us Georgedes v. Georgedes, 627 P.2d 44 (Utah 1981), recognizing the language added to the statute. Now, Judge Rigtrup has given us a decision in Kinsman based upon Georgedes. The main opinion neglects any analysis of the statute or Georgedes, despite the fact that the meaning of the statute's change in 1969 has been directly posed to us in this appeal. I would affirm the lower court's decision as follows.

The parties were married in August of 1979 and divorced by a Third District Court decree entered August 24, 1982. The basic provisions of the decree were adopted from a written agreement of the parties. Neither party was awarded alimony. Mr. Kinsman agreed to assume and pay substantial obligations, including joint debts and personal bills of Mrs. Kinsman. His payments would free her $10,000.00 savings certificate, which had been pledged as collateral for a joint obligation, provide her $5,000.00 in cash, and clear purchase and mortgage obligations on her residence.

Within eight months of the decree, Mr. Kinsman voluntarily filed personal bankruptcy and obtained discharge of the obligations he had agreed to pay in the divorce action. His discharge included his direct, stipulated contractual obligations to Mrs. Kinsman, which were specifically scheduled as debts owing to her. Those debts that involved third-party creditors were cross-scheduled under their names.

Because of Mr. Kinsman's discharge in bankruptcy, Mrs. Kinsman became embroiled with creditors from whom he had agreed to protect her. She was forced to pay, compromise and litigate with third parties the agreed and decreed debts of Mr. Kinsman.

After a hearing on Mrs. Kinsman's petition for modification, the lower court first found that this shift and imposition of debts on her and relief to him was a substantial change in their respective circumstances occurring since the parties' divorce. Then the court concluded:

The Decree of Divorce provided that no alimony would be awarded by the court to either party. However, the Supreme Court of the State of Utah ruled in Georgedes v. Georgedes, 627 P.2d 44 (Utah 1981) that in an appropriate case where there had been a significant change of circumstances, alimony could be awarded to a party although the alimony awarded in the Decree had terminated or no alimony was awarded.

Thereupon, the divorce decree was modified to provide Mrs. Kinsman alimony of $300.00 per month for sixty months.

On appeal, Mr. Kinsman poses the following question: Where a decree of divorce does not award alimony, is the district court empowered by Utah Code Ann. § 30-3-5(3) (Supp.1987) ¹ to award alimony in a subsequent modification proceeding?

I.

Section 30-3-5(3) had its inception in analogous statutes adopted in 1876 and 1888. 1876 Utah Comp. Laws § 1155; 1888 Utah Comp. Laws § 2606. Its direct predecessor, enacted in 1907 and amended in 1909, provided in part:

Subsequent changes, or new orders, may be made by the court in respect to the disposal of the children or the distribution of property, as shall be reasonable and proper.

1907 Utah Comp. Laws § 1212, as amended by 1909 Utah Laws, ch. 109, § 4. This language remained basically unchanged through 1968. See 1933 Utah Rev.Stat. § 40-3-5; Utah Code Ann. § 40-3-5 (1943); Utah Code Ann. § 30-3-5 (1953). The 1969 Legislature inserted the following provision in place of the foregoing:

The court shall have...