Parks v. Zions First Nat. Bank

• Decision Date: 22 September 1983
• Docket Number: No. 18580,18580
• Parties: Henry S. PARKS, Plaintiff, Respondent and Cross-Appellant, v. ZIONS FIRST NATIONAL BANK, individually and as Executor of the Estate of Lucile M. Parks, deceased, Intermountain Health Care, Inc. dba Primary Children's Medical Center, and Joseph J. Taylor, Jr., Defendants, Appellants and Cross-Respondents.
• Court: Utah Supreme Court

Page 590

673 P.2d 590

Henry S. PARKS, Plaintiff, Respondent and Cross-Appellant, v. ZIONS FIRST NATIONAL BANK, individually and as Executor of the Estate of Lucile M. Parks, deceased, Intermountain Health Care, Inc. dba Primary Children's Medical Center, and Joseph J. Taylor, Jr., Defendants, Appellants and Cross-Respondents.

No. 18580.

Supreme Court of Utah.

Sept. 22, 1983.

John A. Snow, Michael N. Emery, Salt Lake City, for appellant.

Richard H. Thornley, Ogden, for respondent.

HALL, Chief Justice:

Defendants appeal a judgment imposing a constructive trust upon real and personal property included in the estate of Lucile M. Parks. They raise the following six points: (1) the evidence is insufficient to support the imposition of a constructive trust; (2) the findings of fact do not comply with Rule 52(a), Utah Rules of Civil Procedure; (3) the award is not supported by the evidence or the findings and conclusions of the trial court; (4) the evidence is insufficient to support the findings concerning purchase of the property; (5) plaintiff is estopped from raising his claim of ownership; and (6) plaintiff has waived his claim of ownership.

Plaintiff Henry S. Parks, who was born February 17, 1909, and Lucile M. Parks, who was born November 25, 1904, were married September 1, 1927, and were husband and wife at the time of the death of Lucile M. Parks on October 25, 1974. Their marriage was described as congenial and happy.

During the marriage, plaintiff was continuously and gainfully employed until September, 1974, at which time he retired from his position as Chief of the Chemical (Mechanical) Engineering Section and Base Consulting Engineer at Hill Air Force Base. Plaintiff testified that his retirement was necessitated by the incapacitating illness of Mrs. Parks.

Mrs. Parks, on the other hand, was not employed on a regular basis during the marriage. At the time of the marriage and for approximately four months thereafter, she worked for the telephone company. She later worked at the Plantation Inn and Ambassador Club Restaurants for approximately six months while plaintiff was in the military service. After the conclusion of her restaurant employment, in November, 1932, Mrs. Parks was never again gainfully employed outside of the home. She did, however, conduct business from time to time with her mother, Elizabeth Colemere, who was described as a business woman.

In 1943, Henry and Lucile Parks moved to a small farm located on 9400 South Street in Salt Lake City, where they commenced raising and selling turkeys. They also developed an orchard on the farm and sold the fruit. Although the income generated by this family operation was very meager, the labor required of both plaintiff and his wife to maintain it was substantial.

During the time this farm was in operation, plaintiff continued to work on a full-time basis at his outside employment. He described a typical workday as follows:

I would get up at 4:30 a.m., do a few chores, get ready to leave the house at 6:00, go to Ogden by a carpool, arrived at 7:14, worked a normal 8-hour shift, came back, make my rounds of the 21st South property, take care of the lawns, water, mow, or whatever, and arrive back at the farm, probably 7:00 at night.

Upon arriving back at the farm, plaintiff testified that he typically did the following:

Q Now, I want to go over that a little more. You get home at night and what do you do, say, from 6:00 to 10:00 in the evening?

A That was putting out feed for turkeys, repairing equipment, building equipment. See, as we were progressing in the size of our flock, the flock required more and more equipment and the responsibilities increased. As we acquired the property, our response--or my responsibility for the maintenance and so on increased.

Q When did you eat supper?

A I never ate supper before--I can't ever recall, ever in my life, eating supper before 10:00 at night.

....

Q And then after your meal at 10:00, you went out with the turkeys?

A Yes.

Q For how long?

A Well, that would be from then until I arose the next morning.

Mrs. Parks' brothers, George and Burgess Colemere, testified that Mrs. Parks was the money and business manager of the Parks family. She did all the banking, kept the records, paid family expenses and signed the checks. It was also shown that Henry and Lucile Parks had a joint checking account.

During their years of marriage, the Parks acquired various pieces of real property, all of which are located in Salt Lake County. At the time of her death, the title to each of these properties was vested in Mrs. Parks alone. The evidence concerning the acquisition of each parcel is different, and each parcel will hereafter be discussed separately.

1. 21st South Property

The 21st South property consisted of ten different lots situated at 1427 and 1431 East 2100 South. These lots were obtained by four separate conveyances.

The first conveyance consisted of four lots, which were described as Lots 38 to 41. The only evidence concerning the acquisition of title to these lots is a deed from Salt Lake County dated March 4, 1940, which quitclaims these lots to Lucile M. Parks. Although the deed itself recites a consideration of $352.72 for the purchase of the lots a tax sale redemption certificate attached to the deed in the record indicates that only $156.72 was actually paid, and that such payment was made by Mrs. Parks. It is noted that Mrs. Parks was not employed at the time she made this payment.

Mr. Parks testified that he later constructed a fourplex on Lots 38 to 41, which generated rental income over the years.

The second conveyance occurred on December 3, 1945. A warranty deed conveying Lots 42 and 43 was executed by O.P. Hendricksen and Kemilla Hendricksen, as grantors, in favor of Henry S. Parks and Lucile M. Parks, as grantees. Mr. Parks testified that he personally paid approximately $700 cash for this purchase.

A second warranty deed conveying Lots 42 and 43 was executed in 1963 by Henry S. Parks, as grantor, in favor of Lucile Parks, as grantee. There is no evidence in the record as to why Mr. Parks made this conveyance.

Lots 46 and 47 were purchased on December 28, 1945, by tax deed from Salt Lake County for the sum of $300, naming Mrs. Parks as the sole grantee. Again it is noted that Mrs. Parks was not gainfully employed in 1945, or anytime after 1932, while Mr. Parks was employed full-time.

The only evidence concerning the acquisition of the final two lots, Lots 48 and 49, is a warranty deed dated March 9, 1946, executed by "E. Rogers," as grantor, in favor of Lucile Parks. E. Rogers, also known as Elizabeth Rogers, Elizabeth Colemere Rogers and Elizabeth Colemere, was Mrs. Parks' mother.

2. 33rd South Property

With respect to the 33rd South property, the only evidence concerning the title to the property is a warranty deed dated June 23, 1959, and executed by W.H. Florence in favor of Mrs. Parks, as grantee. It was also shown, however, that mortgages had been placed upon this property in the names of both plaintiff (Mr. Parks) and Mrs. Parks, and that the mortgage money had been used to construct two fourplexes on the same property.

3. 9800 South Property

A warranty deed was executed on this property by Elizabeth Colemere, as grantor, in favor of Lucile Parks in 1962. Mr. Parks testified that he was unaware that this conveyance had occurred until Mrs. Parks' will was read, and then, he was under the impression that the property had been inherited by his wife. He further testified, however, that he later found out that this property had been purchased, and that the family's only sources of income at that time were his salary and the rents from the investment properties.

With respect to the purchase of this property, Burgess Colemere (Mrs. Parks' brother) testified that his mother, Elizabeth Colemere, had owned a 100-acre parcel of land, which included the 9800 South property, and that she conveyed 25 acres to each of her four children. The 9800 South property constituted Lucile's 25-acre portion. He further testified that each of the children was to pay approximately $100 to $200 per month for his or her 25-acre parcel, but that Lucile had not made her payments.

4. Lincoln Street Property

Record title to the Lincoln Street property was evidenced by an executor's deed dated November 27, 1968, executed by George and Burgess Colemere, co-executors of the estate of Elizabeth Colemere Rogers, in favor of Lucile Parks.

Although the executor's deed recites payment of $17,700 for this property, Burgess Colemere testified that nothing was actually paid by Lucile Parks. According to Mr. Colemere, Mrs. Parks was awarded a credit by her mother's estate in the amount of $7,142.62 for improvements that she and her husband (plaintiff) had made on the property while living thereon. As to the remaining amount of the purchase price, Mrs. Colemere testified that such amount was deducted from Lucile's share of her mother's estate.

5. 9400 South Property

The 9400 South property consists of two parcels, which are identified as parcels H and I. Parcel H, consisting of 4.83 net acres, was inherited by Mrs. Parks from her mother, while parcel I, which consists of approximately 20 acres, was purchased from Mrs. Parks' mother. Parcel I was known as the family farm and was the Parks' residence from 1943 until the death of Mrs. Parks in 1974.

The purchase of parcel I was evidenced by a uniform real estate contract dated June 5, 1943, executed by E. Colemere, as seller, and Henry Parks and Lucile Parks, as buyers. The contract indicated a purchase price of $3,000. The property (parcel I) was later (1951) conveyed by warranty deed from E. Colemere to Lucile Parks as sole grantee.

Within a week after Lucile Parks' funeral services, plaintiff contacted attorney Grant Macfarlane, Sr., and inquired whether Mrs. Parks had executed a will. Mr. Macfarlane told plaintiff that he had drawn a will for...