Stettler v. Stettler, 19156

• Citation: 713 P.2d 699
• Decision Date: 20 September 1985
• Docket Number: No. 19156,19156
• Parties: Robert STETTLER, Plaintiff and Respondent, v. Patsy Edwards STETTLER (Havas), Defendant and Appellant.
• Court: Utah Supreme Court

Page 699

713 P.2d 699

Robert STETTLER, Plaintiff and Respondent, v. Patsy Edwards STETTLER (Havas), Defendant and Appellant.

No. 19156.

Supreme Court of Utah.

Sept. 20, 1985.

Edward B. Havas, Salt Lake City, for defendant and appellant.

Gerald E. Hess, Clearfield, for plaintiff and respondent.

HALL, Chief Justice:

Patsy Stettler (Havas) petitioned the district court for a modification of the parties' divorce decree. This appeal is from the order of the district court denying the modifications requested.

Robert Stettler, respondent here, and Patsy Stettler, appellant, were divorced on August 26, 1981. Under the terms of the stipulation entered into by the parties, custody of the parties' three children (two boys, one girl) was awarded to respondent, with full visitation rights by appellant. Appellant agreed to pay respondent $100 per month per child as partial child support. Respondent received the parties' home subject to a lien securing one-half of the equity in the home at the time of the decree to appellant. The equity was determined to be $39,054.28, one-half of which is $19,527.14. That flat amount was to be paid to appellant "upon sale of the home or upon the youngest child reaching 18 years of age whichever occurs first...." At the time of the decree, the youngest child was nine years of age.

Since the divorce, both parties have remarried and appellant has moved to California with her present spouse. Although appellant was unemployed for several months after the divorce, both parties are now employed, as are their spouses. Respondent, the parties' two sons, respondent's new spouse, and her child live in the parties' home. Appellant, her spouse, and the parties' daughter live in a rented two-bedroom apartment in California.

In June 1982, the parties' daughter, Robyn, asked to live with her mother. Both parties agreed that the daughter's best interests would be served by transferring permanent custody to appellant. To that end, the parties signed a stipulation asking the district court to modify the divorce decree transferring permanent custody of the daughter to appellant. The parties further asked the court to grant each party visitation rights, for six weeks each summer, with the children in the other party's custody. The district court modified the decree of divorce as requested, signing the order on December 3, 1982.

On February 15, 1983, appellant filed an affidavit and petition for order to show cause requesting a modification of the divorce decree. Appellant asked the court to award her $150 per month child support for Robyn. Appellant also asked for contribution from respondent for the reasonable expenses incurred on Robyn's behalf from June 1982 until the date of hearing. Finally, appellant asked for modification of the decree to provide that appellant's equity in the parties' home be paid to her. Appellant's affidavit stated that she wanted to provide a proper home for her daughter and for her sons when visiting and could not do so absent her share of the equity in the parties' home.

Respondent replied, asking for dismissal of appellant's motion; for judgment against appellant for child support in arrears, including support for Robyn during the time Robyn had lived with her mother; for increased child support from appellant to respondent; and for attorney fees and costs. At the hearing on appellant's motion on March 11, 1983, appellant stipulated to the entry of judgment against her for arrears in child support of $875; the court so ordered. The court also found that the costs of support for the oldest boy, who was at that time 17, and the girl, who was then 14, offset each other. The court ordered that no support thus needed to be paid by either party for those children. The court refused to allow child support from respondent to appellant for any expenses incurred for support of Robyn from June 1982 to March 1983. The court also ordered appellant's support payments for the youngest boy reduced to $75 per month. ¹ Finally, the court determined that there was no substantial change in circumstances that warranted modification of time for payment of appellant's half of the equity in the parties' house.

Modification of a divorce decree is a matter of equity. ² Therefore, this Court can review both the facts and the law. ³ However, the Court accords considerable deference to the judgment of the trial court. ⁴ Its judgment will not be disturbed unless the evidence clearly preponderates to the contrary or unless the trial court abuses its discretion or misapplies principles of law. ⁵

On a petition for a modification of a divorce decree, the threshold requirement for relief is a showing of a substantial change in circumstances occurring since the entry of the decree and not contemplated in the decree itself. ⁶ Under the facts of this case, the change in child custody and visitation rights since the original decree amounts to a substantial change in circumstances occurring since the entry of the decree and not contemplated in the decree itself.

At the time of the divorce, respondent was awarded custody of all three children. The provision in the divorce decree providing that appellant's share of the equity in the parties' home not be paid to her until the youngest child reached age 18 or until the house was sold was made with the apparent intent that the children be provided a home to live in until they reached the age of majority. It is clear that no change in custody was contemplated by the parties. Now, however, appellant has permanent custody of one child and has the other two residing with her for six weeks in the summer. Thus, it also has become necessary for appellant to provide a proper home for those children to reside in. Absent her share of the equity in the parties' home, appellant apparently is financially unable to do so.

At the modification hearing, in rendering judgment, the trial court stated that "in fairness to [appellant] she ought to have her equity out of the house...." Thus, the trial court determined that the equities of the situation indicated that appellant should receive her share of the house equity. The trial court then, however, determined that there was not a substantial change in circumstances. The evidence in this case clearly preponderates to the contrary.

Since the trial court erroneously found that there was not a substantial change in circumstances, it did not address the question of whether that change, combined with attendant circumstances, warranted the modification requested. There was substantial evidence in the record which would appear to support appellant's assertion that respondent was financially able to pay appellant her share of the house equity. However, the evidence was insufficient for this Court to determine whether the exact modification requested was warranted by the circumstances. Upon remand then, the district court must address that issue.

Appellant's second point on appeal is that she is entitled to financial contribution from respondent for...