Thompson v. Thompson, 19059

• Decision Date: 30 October 1985
• Docket Number: No. 19059,19059
• Citation: Thompson v. Thompson, 709 P.2d 360 (Utah 1985)
• Parties: Laura THOMPSON, Plaintiff and Respondent, v. Brent THOMPSON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 360

709 P.2d 360

Laura THOMPSON, Plaintiff and Respondent, v. Brent THOMPSON, Defendant and Appellant.

No. 19059.

Supreme Court of Utah.

Oct. 30, 1985.

James A. McIntyre, Salt Lake City, for defendant and appellant.

J. David Nelson, Murray, for plaintiff and respondent.

PER CURIAM:

Defendant appeals from a modification order that he pay a bank loan incurred by him shortly before his 1982 divorce from the plaintiff.

In December 1981, before the divorce, defendant gave a promissory note to United Bank partially secured by a 1977 truck in the possession of his wife, plaintiff Laura Thompson. The following month, the truck was sold and a Datsun automobile was purchased to provide transportation for plaintiff. The bank released its lien on the truck and added the Datsun as collateral for the loan. In addition, Mrs. Thompson was then required to cosign on the note. Defendant made an initial $940 payment on the note but refused to make any further payment, claiming the financial obligation belonged to plaintiff because some of the money was used to purchase her car.

The trial court entered a divorce decree in March 1983, allocating various assets and liabilities between the parties. For some unexplained reason, the loan and automobile were not brought to the court's attention. The decree and findings are silent regarding the specific responsibility for payment of the loan. When the bank later advised plaintiff that she would have to make the payments or lose the car, she petitioned the court to modify the original decree for the purpose of requiring defendant to pay the loan. After hearing the testimony of the parties and the bank officer, the trial court found that the obligation was not considered at the time of the divorce and, therefore, the decree should be modified to require defendant to pay the full amount on the note. We affirm.

Both parties agree as to the considerable and broad discretion we accord the trial court in disposing of the marital property, including attendant obligations. U.C.A., 1953, § 30-3-5, as amended. Defendant disagrees on the manner in which that discretion was exercised in this instance. On appeal, we have broad equitable powers and are not necessarily bound or limited by the trial court's findings. While we may review the evidence and actions of that court, we do not do so lightly but give a presumption of validity to its ruling. Boals v. Boals, Utah, 664 P.2d 1191 (1983). Defendant must show that the evidence clearly preponderates against the findings or that the trial court has abused its discretion. Fletcher v. Fletcher, Utah, 615 P.2d 1218 (1980); Turner v. Turner, Utah, 649 P.2d 6 (1982).

This is not a modification of an existing provision in the decree, but a modification to meet the need created by the absence of a provision. The party seeking a modification of the decree must demonstrate to the court below that a substantial change in circumstances has occurred since the entry of the decree. Adams v. Adams, Utah, 593 P.2d 147 (1979); Haslem v. Haslem, Utah, 657 P.2d 757 (1982). While the trial court did not specifically state that there was "substantial change of circumstance," its findings and the supporting evidence...