*1 CHANDLER, Shirlеy West Plaintiff Respondent, WEST, Defendant
Calvin D. Appellant.
No. 16123.
Supreme Court of Utah.
April
Jerome JoAnn Blackburn Mooney H. Nakamura, Mooney, Jorgensen & Salt City, appellant. Lake for defendant and Clendenin, Hal N. of Fabian & Swenson City, respon- Lake Salt dent.
STEWART, Justice: appeals from Defendant D. West Calvin that he con- the order of the district court mаking mortgage payments pursuant tinue to a obli-
decree of divorce and that defendant’s his former gation was not terminated and the sale of her house. remarriage wife’s Chandler) (now Shirley Plaintiff West in March 1976. In for divorce filed agreement 1977 the entered into an Property entitled Waiver “Stipulation, Settlement for Divorce.” *2 1300 eliminating taxes and insurance costs from
provided
that the
should be award-
home,
was
at
parties’
ed
which
valued
to
mortgage
the
be made
de-
payment
the
make
$46,000,
defendant should
and that
fendant.
mortgage payments
property.”
“all
on said
the
In addition to his contention that
was
than
mortgage
The
indebtedness
less
payments were
of
mortgage
in the nature
$14,000.
agreement provided
The
further
terminated,
support and
have been
should
the
that the defendant should be awarded
point
the
that the courts
defendant makes
property
in real
in Florida
interest
jurisdiction
prop-
to modify
Utah retain
$3,500
$7,500
should
worth between
and
and
when there is a material
erty settlements
plan
retain his interest
in his retirement
argues
and
that
change in circumstances
$174,00
over
and that he
allegedly worth
relаting
provision
the
in the decree
to mort-
The
pay plaintiff
per
alimony.
month
$300
product
gage
the
of a mate-
payments was
provisions
also made
for the di-
rial
and
be rescinded.
mistake
should
personal property
vision of
and the mainte-
policies.
of
The
of
nance
insurance
terms
based on mistake
The contention
stipulation
incorporated
the
were
in the de-
stipulated agreement
persuasive.
not
The
February
cree of divorce dated
1977.
was reviewed and found reasonable
In July 1977
plaintiff sold
hоme
incorporation
trial
its
in the
court before
$60,000,
prior
and sometime
to
1977
August
provision
mortgage
decree. The
was subse
she
stopped
remarried. Defendant
then
at
quently
reviewed
court
the Janu
making mortgage payments to plaintiff.
at
time
ary
hearing and thе court
that
1978
plain-
An
to show cause was filed by
order
part of the
determined
to
tiff
asking
in November
defend-
that
parties’ property settlement and ordered
making payments
ant continue
until he
determination,
payments.
continued
That
mortgage
the total amount of the
indebted-
based
and
on the court’s review of
facts
ness
date
the divorce. Defend-
circumstances, should not be overturned un
20,1977,
ant
filed
affidavit December
injustice
it
less
results
such manifest
or
stating that he
understood
intended the
to
inequity as
indicate a clear abusе
payments to
be in
nature of
English
Utah,
v. English,
565
discretion.
which
upon
would terminate
Utah,
(1977);
Hansen,
P.2d 409
Hansen v.
remarriage.
tiff’s
He further
that
averred
(1975).
1303 However, certain programs, view, insurance in designating my we need not be plaintiff as the beneficiary. provisions confronted with that question, because that with purpose recited the was: “so which we deal here is nothing that Plaintiff more periodic payment than a provided support will be sufficient funds mortgage payment. form of a insure the payment alimony and other payments the agreed Defendant has Also, my seе in Despain dissent v. Des ” make to the Plaintiff . . . pain, Utah, 1303, 610 P.2d There is interesting comparison WILKINS, (dissenting): Justice language paragraphs 2 4 decree. In paragraph defendant was or- I concur with the conclusion of Mr. Jus- dered to make mortgage payments all on tice MAUGHAN’s dissent and specifically the home and off satisfy any “to with his mortgage pay- comments that the and all liens on the property, any if exist.” ments do not constitute a property settle- contrast, In paragraph defendant was ment but rather and maintenance orderеd “to remaining payments make the vehicle,
on Plaintiff’s . . . until such
time as the vehicle is fully purchased and language for.” The paragraph
appears acknowledge might home
sold and the mortgage discharged, or as-
sumed Upon vendee. such a contin-
gency the exist, lien would no longer *5 defendant’s to pay would be dis- Joyce DESPAIN, M. Plaintiff
charged. design of the decree was to Respondent, assure would be able to live in the home she was awarded providing de- DESPAIN, Robert V. Defendant fendant should make monthly Appellant. payments. Such a is in the nature of an maintenance, order for No. 16387. and was discharged, when plaintiff con- Supreme Court of Utah. veyed her interest in the home. April view,
In my majority confuses those cases where a property agree-
ment is made preparation divorce,
but its terms do not become a
decree; and the myriad cases where such an
agreement merged in the decree. For an
example of the former see Hagen Hagen,
193 Or.
Confusing also is the interaction of the
majority 30-3-5, U.C.A., with our statute § statute,
1953. This provisions perti- its here,
nent has been with us since before
statehood, large body of case law
developing around it. The says statute
court has continuing jurisdiction to make
“subsequent changes or new orders with
respect the distribution of
property as shall be reasonable and neces-
sary.”