Bondy v. Levy

Weisshaupt, Gibbens v. (1977). However, the standard opinions, borrowing

enunciated in those

standard Ap- from the California Court of

peals Gaither, Cal.App.2d Gaither (1958), has not been sub-

sequently followed. To the extent Aztec

and Gibbens are inconsistent the stan-

dard we have announced in Kolouch

Kramer and Nampa Abbott v. Dis- School

trict, they have been overruled sub silen-

tio.

Applying clearly erroneous standard

of review to the factual determination of case, district court this I conclude the court’s determination “that degree in use in this case was of a

reasonably foreseeable at

the time it was supported established” is

by substantial evidence in the record and is Therefore, erroneous. I would

affirm the judgment. district court’s

Accordingly, I respectfully dissent. BONDY,

Marcia Kahn Plaintiff-

Respondent, LEVY, Defendant-Appellant.

Paul E.

No. 18798.

Supreme Idaho, Court of

Boise, December 1991 Term.

March 1992.

Rehearing Denied June Offices, Boise,

Levy Law defendant- appellant. Levy, argued. Paul E. Cosho, Welsh, Humphrey, Greener & Boise, plaintiff-respondent. Stanley W. Welsh, argued.

BOYLE, Justice.

I. Bondy E. Marcia K. were Paul 31, May divorced on 1985. The divorce Property Custody decree contained a Agreement which had en- Settlement been 21, on March tered into subsequently was amended and which custody April Although of 1985. the child support provisions agreement of the merged into the and decree were divorce, agreement remainder binding contract. In Febru- survived as brought a action ary Bondy civil recovery under seeking of all due In a memorandum 9§ decision, judg- court2 awarded a trial $18,250 mo- represented all ment of which agreement settlement nies due under the Levy appealed 1989. through February 15, 1990; a) through March pertinent portion $750 1. The 9 of the b) July provides: through 1998. $550 pay Payments Husband shall Section 71 action, I, assigned Hon. The first basis on the Wife in cash on a non-modifiable assigned action was Bail. This current Deborah day com- of each month first and fifteenth mencing April Duff McKee. to Hon. 1985: the trial court’s Levy’s decision to this Court and court’s denial of motion to dismiss we issued request stay our first decision in or for a Bondy v. because the record I), Levy (Bondy before us does not contain the basis for See, motions.4 City we Anderson v. described a Pocatello, portion between these (1987) (appellant parties appeal has burden on as follows: presenting Supreme sufficient record and type This is known as a by presented Court is bound record ap- on agreement, “Lester” entitling peal); 765, Hodges, State v. 103 Idaho 653 to certain tax Typically, benefits.3 such (1982). P.2d 1177 agreements require the husband to make payments of a certain amount and allow Therefore, our review is limited to the him thereafter to a obtain deduction granting summary judg- trial court’s payment. taxes for the Through inment this instant Bondy action. moved Levy provided Bondy summary judgment relying primarily with funds which she pro- upon would use to the district court’s conclusions in vide for all the Bondy provisions children’s needs. The I and the of the settle- payments $1,500 month, $1,000 were agreement. Levy of ment responded arguing which was to duty renegotiate cover all the children’s that a existed under the needs, change brackets, of which contract due to a in $500 was allowed to tax “overhead,” including agreement provided cover Bondy’s payments in- Bondy come tax resulting sup- costs cease the event of her from the cohabitation, port arrangement. remarriage or and that underlying purpose of the contract had Bondy, 963, 119 Idaho at 812 P.2d at 270. by Bondy’s sup- been frustrated refusal to While Bondy was'pending appeal, I on port the paid by children with the funds despite Levy’s filing supersedeas of a pursuant him The trial amount, appropriate bond granted Bondy’s summary court motion for brought the instant action in district court judgment concluding renegotiation to recover those owning due and was not because 71 and 215 of §§ subsequent 15, to February the Internal Revenue had Code not been requested stay and filed numerous mo- Levy’s amended.5 The trial court held that tions, including a Motion to Dismiss. The other claims were immaterial. Motion to Dismiss was denied the trial It is well established that a motion for court and the motion stay for a was taken summary judgment is to “be rendered Thereafter, under advisement. the trial pleadings, if the depositions, forthwith granted Bondy’s court motion for file, together admissions on with the affida- judgment Levy’s and denied motion for a vits, if any, genuine show that there is no stay proceedings. Levy appeals the any issue as to material fact and that the trial court’s denial of his motions and moving party judgment is entitled to as a granting summary judgment in favor of 56(c); McCoy matter of law.” I.R.C.P. Bondy. 765, (1991); Lyons, 120 Idaho 820 P.2d 360 Irrigation G & M Farms v. Funk 119 II. 514, (1991); Idaho Brown v. preferable Inc., While it have been Mortuary, Matthews 118 Idaho (1990). Furthermore, for the trial court stayed below to have 801 37 P.2d when proceedings pending our in Bondy determining decision whether a motion for sum- I, mary granted, we are unable to consider the trial should be all dis- court, Lester, 3. Commissioner Internal Revenue v. was filed with the trial but memo- such appear 366 U.S. (1961); 81 S.Ct. 6 L.Ed.2d 306 randum does not in the record. Lawyer 4 The Practical Tax 5.At the time the district court rendered its suggests 4. The record that a memorandum in decision in the instant action it did not have the support stay motion to dismiss or for a benefit of our decision in I. puted liberally facts are to be Revenue construed Section of the Internal Code non-moving party, favor had not and all rea- been amended since signed can be in 1985. It remains force. sonable inferences which made from While the Act of made in Tax Reform 1986 did record shall be favor of the brackets, change party the tax it did not resisting the motion. alter McCoy v. or amend Lyons, (1991); provisions section nor did it shift the tax Irrigation Co., operate & burden G M Farms v. Funk (1991); between on account of section Brown v. acknowledge Inc., I While Mortuary, Matthews might in tax brackets have made tax treatment less advanta- considering appeal an a When from defendant, geous to the the amendments judgment, motion for our stan change the structure of did deducti- dard is the same as of review the standard 71, bility under section which the by passing in the trial court on object provisions of section 9.03 of summary judgment. motion for McDonald the contract. 725, Paine, v. Idaho 810 P.2d 259 119 (1991); Bowling Meridian Lanes v. Merid unambig- I think is clear and this clause 509, Athletic, ian Idaho 1294 105 670 P.2d obligation providing uous in to (1983). Accordingly, our task on is appeal renegotiate triggered only if shall be sec- apply these rules to record before us change 71 is there is a tion amended and genu and there determine whether exists a deductibility in the of No ine fact and issue of material whether Bon deductibility has such oc- dy of entitled to a matter curred.6 determination, making law. In this arewe It in Idaho established that well totality and consider to review construing party’s a settlement when motions, affidavits, depositions, of agreement, rule of contract con normal pleadings attached exhibits contained See, Wolford, v. apply. struction Wolford City in the v. Poca record. Anderson (1990); 61, Spenc 117 Idaho P.2d 625 785 tello, 176, (1986). P.2d 112 731 171 Idaho 338, Spencer, 115 Idaho 766 er-Steed (1988). objective primary 1219 The

A. discover construing is to a contract and in order effec parties, intent In claim considering that the con- must objective, tuate this the contract be renegotiation, the trial tract called for considered in its as a viewed whole court 9.03 of the settle- analyzed Section Surety Co., entirety. v. Western Luzar provides: agreement ment which (1984); 693, Idaho P.2d 337 Beal v. 692 9.03 The enter Tax Treatment: 662, Corp., 99 Idaho Mars Larsen Ranch agreement into with the under- this Bliss, (1978); Bennett v. 586 P.2d 1378 payments be de- standing that these will 358, (Ct.App.1982). The Idaho 647 P.2d and includable to Husband ductible interpreting primary consideration pursuant income Wife’s § in to determine the ambiguous If Internal Revenue Code. 215 of the parties. Luzar Western tent of the See by otherwise these tax con- legislation or Co., 692 P.2d 337 Surety changed, this sequences are contract’s The determination renegotiated purpose shall be questions meaning legal effect resulting shift in income offsetting the where the by the court law to decided parties. tax between burden unambiguous. Gal contract is clear and Advertising Inc. axy settle- Outdoor considering provision this 109 Idaho Transportation Department, the trial court noted: ment likely would have proceedings, Bondy I conclusions stayed and its it court Had the trial been different. of our decision in had the benefit would have (1985). However, 710 P.2d 602 riage. where The provid- as amended ambiguous, pertinent a contract is determined ed in part: to be interpretation presents of the document These will not terminate if question of fact upon which focuses Upon the wife remarries. remarriage, if parties. See, intent of the Rameo v. H-K elects, husband money depos- will be Contractors, Inc., 118 Idaho 794 P.2d ited in a checking account supervi- under (1990); Luzar v. Surety Western sion of a trustee. Money for the chil- 107 Idaho food, 692 P.2d shelter, dren’s clothing, schooling, determination of whether toys, a contract is am lessons and activities will be drawn biguous question or not is a law over this account the wife. In addi- tion, review, which we exercise placed upon free see taxes money this can be Contractors, Inc., Ramco v. H-K withdrawn. 118 Ida (1990); ho DeLancey v. Levy submitted an stating affidavit DeLancey, 110 Idaho clearly intended the term “re- (1986); Park, Pocatello Industrial Co. v. marriage” encompass a cohabitation sit- West, Inc., Steel 101 Idaho suggests uation and inwas fact (1980); Ransom, Prouse v. cohabiting. Levy asserts that his affidavit 734, 791 (Ct.App.1989), and in questions raised of material pre- fact that determining whether ambigu a contract is granting clude summary judgment ous, our task is to ascertain whether the this disagree. case. We reasonably contract is subject to conflicting legal The determination and ef interpretation. Spencer-Steed Spencer, fect of a provision question contractual is a 115 Idaho (1988); De of law where the contract is clear and 714 unambiguous, and courts cannot revise the Lancey DeLancey, 110 Idaho (1986).

P.2d 32 change contract order to or make a parties. better for the Galaxy carefully After reviewing the record Advertising Outdoor Inc. v. Idaho Trans us, before we are satisfied that a reason portation Department, conflicting able interpretation exists be P.2d 602 Accordingly, unless the language cause the referring change to a “remarriage” term is being viewed as am consequences in tax can reasonably be con biguous, the pro effect of this contractual require strued to renegotiation in the event vision is a matter of law. prior Unlike the a shift in tax brackets occurs which affects regarding discussion duty renegotiate a to the real cost involved in making payments upon change consequences, a in tax we are pursuant agreement.7 to the Because we unable to conclude provision that this provision hold this ambig of the contract is ambiguous “remarriage” because the term uous, an issue of material fact exists which subject conflicting is not to reasonable in preclude entry would judg terpretations. Therefore, we do not read Accordingly, ment. on remand the trial “remarriage” provision encompass as court should determine parties what the ing a cohabitation situation. We hold provision contract, intended this of the Levy’s trigger affidavit does not the trust change whether a in the tax conse provision of the nor would it quences has occurred trigger sufficient to precluded granting have summary judg renegotiation provision. ment on issue. Accordingly, this we affirm granting the district court’s order sum

B. mary judgment on this issue. April, Pursuant to 1985 amendments C. agreement, Levy to the assumed a contin- obligation ued to make notwithstanding under the that contends Bondy’s contract the event of designation payments, remar- contract as $18,000 payment 7. The record indicates that as a result of a on a $9,360 annual increased from brackets, $12,960 Levy’s in the tax after tax costs in 1986 to in 1987 and 1988. parties regard funds he to pay under the con- the intent of the to support solely purpose payments. Noting tract were intended children, Bondy’s and that use of expressed those limited had a number of support funds in children was appellant’s events that would condition the obligation pay. Bondy a condition to his obligation make payments, continual on the hand the pay- other contends that applicable appel- none of which were support ments her are for and maintenance claim, lant’s nonetheless court reversed only, that she is free utilize the remanded case for a factual deter- any way funds she The chooses. trial implied mination as to whether an condition court 71 pay- concluded because § appellant existed that would alleviate the support ments do not involve child consid- making Id., future erations, duty to pay was affect- A.2d at 355. ed. objective The primary construing We note that facts of the instant case contract is to discover the intent of the Kohn, Pa.Super. to Kohn v. similar parties, in order to effectuate this ob- Kohn, 364 A.2d 350 jective, must be viewed as into entered an similar entirety. in its Lu- whole and considered appellant to the one at issue. The husband Surety zar Western contractually obligated pay- was to make (1984); Mars Beal v. Larsen designated “alimony” ments and the re- Corp., 99 Idaho Ranch responsible all spondent was child wife (1978). Furthermore, ambiguity unless support. “alimony” designation found, legal interpretation effect and might apparently used so the husband Galaxy of a contract is a matter of law. advantages pursuant obtain Commis- Inc. v. Trans- Advertising Outdoor Lester, sioner Internal Revenue of portation Department, 109 Idaho 6 L.Ed.2d 306 U.S. S.Ct. (1985). Accordingly, we must de- Kohn, Subsequently, in the hus- conflicting termine whether reasonable custody of the minor band was awarded indicating interpretation an exists ambi- making the children. He then ceased “ali- pay- the of guity regarding purpose the mony” pay- that payments on the basis the ments. sup- ments were in fact intended as child agreement in the The terms of the argued payments port. The wife that the demonstrating that the instant action § designated “alimony” as were may have intended as child payments been parol objected to the husband’s use of evi- payments support that were to contin are intent or contrary dence to show a mean- Bondy’s remarriage in ue the event ing. trial court sustained wife’s The renegotiated was to be the amount agreement objection, that the determined consequences. of a in tax event ambiguous was not and found husband agreement provided that Bon Further the the settlement contract. On breach of pay of the dy was to refund two-thirds noted that appeal, the court Kohn while periods of time in which ments those generally for its ordi- may a word be majority custody of children had of the nary meaning, the context instru- period and the contract any week two ment, as when viewed a whole demon- limiting Bon spendthrift clause contained a meaning was a different actual- strate that also note that dy’s of the funds. We use Kohn, 364 A.2d at The ly intended. sec original agreement, which 10 of the § language of the court then examined the decree, merged the divorce tion into concluding that the term “alimo- document support all child required to assume tax ambiguous light of incen- ny” was exception, re obligations, and with limited payments as such even tives term obligations support Levy of all child lieved may have though purpose ultimate under the Id. Ac- provide for the children. been to reviewing the terms thoroughly that extrin- After cordingly, court concluded rea- satisfied that we are necessary to determine evidence was sic conflicting interpretations sonable exist re- stances under which the contract was made, garding purpose of the payments Wiles, (citing Wiles v. Kan. § therefore, provision ambigu- (1969)) (provisions specifi- Furthermore, ous. because extrinsic evi- cally contract, mentioned in a but written parties dence of the intent is carrying which are pur- essential in out its ambiguity, resolve this we genu- hold that and, poses, may implied, properly when ine issues of fact pre- material exist that implied, binding are as if as written there- entry summary judgment clude in this in). remand, issue. On if the evidence sub- payments mitted indicates that in- were III. support, tended for child the trial court conclusion, In we hold that 9.03 of the should also parties consider whether the agreement requires parties of the evidence implied intended an or constructive condi- regarding changes intent trigger what tion support be used to result, renegotiation provision. As a gen- the children. As the Court in Kohn noted: uine issue of fact material exists which very happens It often that when two precludes granting summary judgment. trying to integrate their ambiguity We likewise an hold that exists writing they in a omit to state regard underlying purpose be- assumption some fundamental on the ba- payments, hind the and that the need for which, know, sis of of them both well extrinsic evidence to make such determina- being made. The mere precludes tion entry summary judg- writing existence of the should never be Finally, ment in this case. we hold that the testimony held to exclude of such an “remarriage” provision ambiguous is not assumption. unstated fundamental The and that evidence of cohabitation does not truth assumption—the of this existence trigger provision agree- the trust of the fact that is assumed—is a condi- light holding ment. of our the district tion obligation of the written attorney court’s award fees to promise; is so and this whether we de- vacated. The of the district scribe it as a constructive condition or as court is “remarriage” affirmed as to the implied condition. issue but otherwise is reversed and re- put into agree- words their manded for proceedings further in accord- ment obviously necessary items, on with- opinion ance with this and to consider our foresight out to the as events of the prior instruction in I. future, leaving unexpressed some of the assumptions fundamental of they which appellant. Costs to No fees awarded on only partly be either or appeal. con- requires courts, scious. Justice the with

the advantage hindsight, of to fill some BAKES, C.J., JOHNSON, J., and concur. of gaps. these Evidence of the facts BISTLINE, Justice, dissenting. tending to show that such a fundamental made, assumption though not ex- join dissenting opin- I Justice McDevitt’s pressed writing, in the should never be addition, ion. to majority’s I dissent the excluded____ (Citations omitted). finding exists ambiguity that “an with re- gard underlying purpose Kohn, to the behind the 364 A.2d at This 350. well reasoned payments, and the need for analysis is consistent with well [§ 71] established extrinsic evidence to make such a determi- principles. contract See Davis v. Profes- precludes entry Services, nation the sional 109 Business Idaho Absolutely (1985) 712 in this case.” no fa- we wherein held that in every ambiguity parties’ cial exists in 9 of the only contract there exist not the ex- § designated press promises Section 9 certain set forth the contract but 71 implied provisions pay- all such as are as necessary § ments, parties, referring to effectuate 71 of the Internal the intention the specific and as arise from the Revenue code section circum- Code. That deals 1000 McDEVITT,

specifically solely alimony Judge, dissenting: and separate payments, maintenance analysis I in the cannot concur the agree- payments” 71 such the “§ in the determination that Court that results alimony ment must be viewed as or mainte- 9.03 of settlement section nance by ambiguous. entered into is I dissent. therefore majority correctly states that con- reasonably ambiguous if it is tract is sub- interpretation.

ject conflicting How-

ever, ambiguity must found within document, corners of the unless it four or

contains absurdities contradictions. Sa- Suchan, 682 P.2d

chan v. Idaho Boesiger See also DeMode- na, (in- (1965) Idaho tent to written Chen, E. and Nelcine L. John CHEN language be ascertained from con- Plaintiffs-Appellants, therein); Campbell- tained McCollum v. Co., Simpson Motor (a (1960) contract must be construed CONWAY, Robert J. Defendant- by according plain language Respondent. Simonson, 108 parties); Idaho Wood (when (Ct.App.1985) No. 19663. clear, language of a the mean- Idaho, Supreme Court ing intent of the of that contract Boise, February 1992 Term. plain from the parties must be determined words). meaning of the contract’s own April importantly, par- the intention Most by determined ties to a contract is what language expressed

intention

used; existing the issue is not intention parties. Tapper v.

in the minds of the P. Irr.

Here, ignore the majority chooses to parties’ language

plain clear payments in

agreement which defines the Further,

question as 71§ of an ambi-

majority infers the existence reference, part, to information

guity by Because the terms the contract.

outside ambiguous, extrinsic “underlying any pur- purported

evidence properly cannot

pose” This contravention

admitted. rule, any extrinsic because

parol evidence necessarily contradict will

evidence meaning implications of

plain Ҥ

payments.” reasons, I from the dissent

For these opinion.

majority

Case Details

Case Name: Bondy v. Levy

Court Name: Idaho Supreme Court

Date Published: Mar 31, 1992

Citation: 829 P.2d 1342

Docket Number: 18798

Court Abbreviation: Idaho