Lea v. Bowers

• Decision Date: 16 February 1983
• Docket Number: No. 18030,18030
• Citation: Lea v. Bowers, 658 P.2d 1213 (Utah 1983)
• Parties: Joan Sena Bowers LEA, Plaintiff and Appellant, v. Farrell D. BOWERS, Defendant and Respondent.
• Court: Utah Supreme Court

Page 1213

658 P.2d 1213

Joan Sena Bowers LEA, Plaintiff and Appellant, v. Farrell D. BOWERS, Defendant and Respondent.

No. 18030.

Supreme Court of Utah.

Feb. 16, 1983.

Noall T. Wootten, American Fork, for plaintiff and appellant.

H. Grant Ivins, American Fork, for defendant and respondent.

DURHAM, Justice:

This is an appeal from a judgment modifying a divorce decree. We reverse because the trial court erred in modifying the divorce decree in the absence of factual finding of a substantial change in circumstances.

On April 29, 1974, a default Divorce Decree was entered granting a divorce to the respondent. Paragraph 7 of that decree provided as follows:

The plaintiff is hereby awarded as her sole and separate property the 1965 Chevrolet automobile, all of the household furniture, furnishings, fixtures and equipment belonging to the parties hereto and the home and real property located at 1765 North Trinnaman, Lehi City, Utah County, Utah, and more particularly described as follows, to-wit:

Commencing 8 chains North 8.62 chains North 63% 1/2? East and 4.85 chains North 33 3/4? West of the Southwest corner of Sec. 5, Twp 5 S, R1E, SLM; thence North 33? 45' West 0.27 chains; thence North 24 1/4% a1 West 1.71 chains; thence North 67? East 5.16 chains; thence South 23? East 1.98 chains South 67? West 5.12 chains to beginning. Area: 1 acre.

In the event that said home and real property are sold, the proceeds from such sale shall be divided equally between the plaintiff and defendant after the discharge of all costs of said sale.

This provision was entered following the court's approval of a Stipulation and Property Settlement Agreement which had been executed by both parties on March 22, 1974. Paragraph 6 of the Stipulation and Property Settlement Agreement contained the same provision with reference to the home as that set forth in Paragraph 7 of the divorce decree.

On March 22, 1974, the respondent executed and delivered to the appellant a quitclaim deed to the home and real property referred to above, which deed was recorded with the Utah County Recorder.

On May 13, 1975, the respondent filed with the court a motion to amend the provisions of Paragraph 7 of the divorce decree on the grounds that he was not represented by counsel at the time the stipulation was signed, that the decree itself was ambiguous and should be modified to reflect a clear interpretation of the intent of the parties, and that a modification would be equitable. The respondent's affidavit in support of his motion alleged that at the time he signed the stipulation he was unable to read it due to poor eyesight and not having any reading glasses at that time, and therefore, he had to rely on the appellant to read the document to him. Furthermore, he stated that, had he been advised by counsel at the time he signed the agreement, counsel would have had the stipulation provide that the home be sold on the remarriage of the appellant.

On May 23, 1975, the appellant filed a counter-affidavit in which she stated that the respondent was coherent and alert when he signed the stipulation, that she read it to him several times in the kitchen of their home, and that they discussed each paragraph in detail. She said that she asked him if he understood the document and he responded in the affirmative. She further represented that the original stipulation and settlement agreement was understood by both of them and did in fact reflect their agreement, and that when the quitclaim deed was delivered to her by the respondent it was understood that the home would be hers until such time as she decided to sell it.

On June 2, 1975, the district court entered the following ruling:

Defendant's motion to amend the Decree of Divorce is denied. The Court did not in the Decree of Divorce reserve for future adjudication the matter of the interest of the parties in the home, and there has been no allegation that extrinsic fraud on the part of the plaintiff in any way affected the manner in which the parties interest in the home was adjudicated. There is no ambiguity in the Decree as to the disposition of the home, and the defendant had knowledge of the provision and could have acted to reopen this matter within the interlocutory period and pursuant to Rule 60 U.R.C.P.

No appeal was taken from that ruling. On May 9, 1980, the same issue was again brought before the same judge of the district court by the respondent and, according to the minute entry on file, the court declined to take evidence on this same issue.

On June 19, 1981, the matter was brought before the district court for the third time on the same issue and, on September 24, 1981, the court modified the decree of divorce, ordering the home sold, based on the following Finding of Fact:

1. That at the time the Stipulation was entered into which governed the Findings and Decree in the original Divorce, the defendant was not represented by counsel and had been drinking heavily for extended periods of time, and the Court finds that the defendant believed the Stipulation required the plaintiff to hold the home for as long as his minor children were living in the home with her but thereafter the home would be sold and the equity divided between them.

It is from that order that this appeal is taken.

On a petition for modification of a divorce decree, the...