*1 proved which as be heretofore stated must by convincing clear and As in evidence. Respondent Dawna EASTMAN, Plaintiff, trials, testimony
most of is con- witnesses and Cross-Appellant, flicting, credibility of those var- witnesses ies, may strength- non-testimonial evidence Appellant EASTMAN, testimonies, en or weaken the witnesses’ Cross-Respondent. all foregoing inferences from No. 14394. among not be uniform different triers Supreme Court of Utah. But, before, of stated fact. also 20, 1976. Dec. findings trial court’s will be disturbed not unless the record shows abuse.
matter, it does not. emphasize
Plaintiffs confi relationship
dential existed between them
and defendants because evidence plaintiffs
trial showed that trusted defend
ants particularly by provi vivified agreement
sion in the between dated
May 18, 1966 which stated in substance plaintiffs convey would title to the prior to payment defendants purchase price full plaintiffs had
trust and confidence in defendants. The purchase price $19,100.00
full was final
ly paid in acknowledged 1972 and
plaintiffs. It is true that defendant Bert
Carter at trial conceded he withheld
payment $1,900.00 but contended that protect done to defendants from the plaintiffs
“feuding” between and Rasmus-
sens. not an unattached trust that a places
transferor in the transferee which
produces a constructive trust but rather
that trust personal anchored to a or
relationship (or course another confiden
tial fiduciary nexus) justifies
belief in the transferor that the transferee
will act in his interest.
The trial findings court’s and decision
are in harmony with Utah regarding law
constructive trusts.6
Affirmed. Costs to defendants.
HENROID,
CROCKETT, MAUGHAN, JJ., con-
cur.
Jensen, supra (transfer
(transfer by
Haws
mother
Plaintiff and defendant were married in in 1950 Wyoming. Of marriage four children were born: Roger, Diane, Jerry Gary, and but only the latter two still live at March, home. plaintiff sued divorce, for granted July, in 1972. The trial court awarded her the cus- tody children, per month, sup- $200 port money, per month alimony, the $50 Magna home in valued at about $27,000, automobile, a one-half share of the two bank jointly accounts held by plaintiff defendant, and and in at- $350 torney’s fees. Defendant was awarded a duplex (worth approximately on $7,700) Avenue, Paxton City, Salt Lake Utah, a truck, four lots, burial half of the joint bank accounts and his own savings However, account. due disputations matters, about these parties the stipulated August in 1972 that the matters of alimo- ny, support money, division of the property and attorney’s fees should be further heard and considered the court. After a Miner, series of City, delays,
Mark S. Salt Lake the for hearing was held on 12, 1975, November pellant. after which the original divorce decree was amended. Vuyk, City, P. Thomas for provided then plaintiff pay was to spondent. the property taxes on Magna home out of her share of accounts, the bank that the CROCKETT, Justice. support child money be set at per $100 Eastman, appeals month for Gary per month for $75 portions attacking of an amended divorce Jerry, injured who had his hand in a plaintiff: (1) decree which awarded school accident work; and is unable to parties’ Drive, plaintiff’s residence 3294 Breeze alimony be reduced to $25 Utah; Magna, (2) per month; one half of the amount that certain United States sav- deposit savings then on in two accounts equally bonds be divided with the approximately (the totaling two accounts names of or the one other of the four chil- jointly parties; (3) $3,033) owned thereon, dren named as co-owners gave each a bank in their of them account bonds be retained defendant for the name; plaintiff benefit, (4) own awarded to children’s that defendant be or- $25 per alimony; per month month dered maintain health (5) his and accident $100 support money Gary, age per policy for insurance for benefit of the two $75 Jerry, age (6) any month at- for minor children. As to other property, $350 torney’s bonds, having party fee. bank accounts or keep possession them. Except cross-appeals, contending Plaintiff she original divorce decree changes, those month; alimony per (1) entitled to of $150 remained. necessary pay the amount three (2), years many Magna taxes have times stated on home proceedings in cases though an fees. even divorce increase equitable, in may which this Court re what, to determine anything, should be evidence,1 prerogatives due to the done about any additional award of attor- advantaged position court, of the trial fees.3 give considerable deference to find judgment is affirmed and the case judgment; ings and and we do not disturb is remanded for proceedings such further clearly prepon the evidence unless seem advisable to determine wheth- *3 contrary, or he has abused derates to er equity justice considerations of discretion, misapplied principles quire making of a further award of attor- applying just rules stated to In law.2 ney’s fees, so, how much. No costs as arrangements in the divorce decree awarded. recited, perceived we have hereinabove persuade that we therein to us
nothing HENRIOD, WILKINS, J., interfere therewith. should concur. (concurring). Justice plaintiff has also
Counsel for the attorney’s fees sought a further award of except remanding I concur subsequent to the for services rendered permit this case to the trial court to deter- award, appeal. original including on attorney mine fees should be whether at the award made assume appeal. awarded on ren services the decree covered time of awarding fees on Concerning the is up to that time. dered entirely the discre- peal a matter within attor to a further award of raised as sue appellate Swain v. court. See tion of fees, these comments: we make Investment Estate and Real appeal there is an fact that 709 121, 2d 279 P.2d Company, 3 Utah both indicating that cross-appeal, Er- Appeal and (1955); and 5 Am.Jur.2d and attack with dissatisfied parties are ror, 1022. Sec. do not know judgment, ex- MAUGHAN, in the views J., concurs proceed responsible be held EL- opinion of concurring pressed in the decree, and we subsequent to LETT, the trial court position good not in J. 167, Kiger, Kiger P.2d 2d 506 v. Utah VIII, 3. Const., 9. Sec. Art. 1. Utah Christensen, 2d 441; 18 Utah v. Christensen Bader, 534; 18 Utah 315, v. Bader 422 P.2d Wiese, 2d 24 Utah Wiese 2. See Butler, 150; Butler 424 P.2d Mitchell, 2d 527 P.2d Mitchell P.2d 259, 461 2d P.2d 1974). (Utah