Robert D. KLEIN, Plaintiff and Appellant, v. Mary Avalon KLEIN, Defendant and Respondent.
No. 13994.
Supreme Court of Utah.
Dec. 16, 1975.
544 P.2d 472
There is nothing here indicating the amount of material agreed upon; the time within or during which performance is required. It was as compatible with perpetuity, as with a definitive hour-glass measurement. The provision here as to performance “if and when the option is exercised,” is vulnerable to a similar contractual deficiency; the provision that “This option is for the purpose of establishing the price,” seems meaningless without a recitation оf the amount of material agreed upon,—absent here, or, again, a recitation of the time for payment. The “special conditions affecting the availability” of the materials, unresolved but seemingly determinable in futuro, almost reaches the assumption that it is an agreement to agree, failing whiсh, none exists. The statement that the agreement shall not be construed as a sole or prior right to the materials leads one to conclude that Ogden could have sold not only the “materials” but the fee at any time before a firm contract was born,—which certainly was no fait accompli herе; the provisions about arrangements to be made for occupancy or removal and stipulations for work areas and “any other pertinent agreements” shall be made before entry to remove material is accomplished in futuro, surely does not lend itself to the basic concept undеr obligation of contract‘s principles that the terms must be certain.
As to the facts recited, those mentioned in plaintiff‘s brief are accurate enough, but by and large, are most favorable to plaintiff‘s contention. Other believable facts either discount some that are stated in favor of plаintiff or lead to a reasonable refutation, or at least to an entirely different scenario. They would appear to be of the type looking to the supplying of terms found missing in the instrument,—not in explaining confused terms contained therein. Such procedure would seem to be unacceptable in evidentiary areas.
We believe that on top of the correctness of the trial court‘s analysis of the terms of the “option,” there is ample, believable, competent and admissible evidence that if believed by the court, as seems to be the case here, make inescapablе the requirement that we do anything else but affirm under the accepted rules.
Since we conclude that the trial judge was correct in his deliberation both as to the law and the facts, to the effect there was no binding contract, we believe and conclude that the other points on appeal—II, as to estoppel, III, IV and V re: breach and VI, relating to damages—are moot and that VII, to the effect that the Court failed to make certain findings and those made were insufficient to support the judgment, is without merit, and that VIII, with respect to the matter of filing for costs, may be determined by the lower court.
ELLETT, CROCKETT, TUCKETT and MAUGHAN, JJ., concur.
Robert S. Campbell, Jr., and James P. Cowley, of Watkiss & Campbell, Salt Lake City, for defendant-respondent.
CROCKETT, Justice:
This appeal is sequel to Klein v. Klein, 30 Utah 2d 1, 511 P.2d 1284 (1973). It аttacks a supplemental decree of the district court which adjusted the financial and property interests of the parties.
Other basic facts are set forth in the prior decision. It is material here to recite only that these parties were married in 1953; that they bеcame the parents of three children; that the plaintiff has a net income of about $24,000 per year; that the defendant has an earning capacity of about $3,600 per year, but is presently unemployed; and that the court awarded $300 per month alimony and $100 support money for each child.
None of the foregoing facts is in controversy here. The dispute is over division of very substantial assets and property which had been built up during the marriage.
In the original divorce case the trial judge found their total net worth to be $225,000; and attempted to award defendant about one half by giving her the family home, valuing it at $103,000, plus a Chevrolet, and the proceeds from the sale of four lots, valued at about $6,000. But it is apparent from the findings and decree that the court was not entirely satisfied with the arrangement arrived at. So instead of making a definite and final disposition thereof he included this somewhat unusual provision as the final рaragraph of the decree:
The court further retains limited jurisdiction if within one year either party proves to be suffering serious financial distress because of this decree based on decisions and ensuing developments arising therefrom not capable of evaluation and effect at this time, the court will review its ruling and determine whether modification should be made.
On review of the case on appeal, this court also had apprehensions about the valuation of the property and the allocation thereof, but decided not to wrestle with that controversy because of the rеservation in the decree just recited, which would give the trial court a further opportunity to deal with that situation. This is shown by the following language from the decision:
The Judge who tried this case has retired and another Judge will hear any future matters.
If the Decree causes financial distress, the ruling made can be reviеwed if within one year after final judgment either party requests it.
Another possible reason for having the matter looked at within a year is the distribution of the assets.
The decision of the Court was based upon an assumption that the net value of the assets of the plaintiff was $225,000.00 . . . .
Having confidence in the integrity of our trial сourts and the ability of the judge to review the matter if presented to them, we affirm the judgment rendered and leave it to the lower court to determine if a modification should be made.
After the remand, the defendant, on October 25, 1973, filed a “Petition for Review of Economic Matters and Modification of the Dеcree” supported by affidavits and proffer of proof. In connection with an order to show cause issued thereon, the trial court2 indicated his view that under the prior decree and the decision of this
If we look at the total situation, including the substantial property interests and the complex financial situation of these parties, together with the facts that the original decree did nоt purport to make the usual final disposition thereof, but contained the reservation recited above, we see nothing unreasonable or improper in the just stated conclusion of the trial court. The circumstances here distinguish this case from those relied on by plaintiff which hold that a final decree cannot be modified except for a change of circumstances. Moreover, in this situation we see no reason why the court in its effort to do equity between these parties could not make whatever corrections or adjustments in the decree it deemed necessary to carry out that purpose.
Consistent with that objective, there followed extensive discovery procedures, and a hearing of several days’ duration, at which both parties presented extensive evidence and the testimony of experts on valuations; and thereafter submitted their respective memorаndums and proposals as to the disposition to be made of their financial affairs. Consequent thereto, the trial court on November 11, 1974, made findings that the value of the assets was $2,037,535.63, less liabilities of $288,725.65, with a resulting net worth of $1,748,809.98. Of this it awarded to the plaintiff properties valued at $1,121,471.63, required him to discharge obligations of $189,869, thus giving him рroperties of net value $931,602.63. To the defendant he awarded properties valued at $842,144, required her to discharge obligations of $98,856.65, a net award to her of $743,387.35.
Four days after the November 11, 1974, supplemental decree, plaintiff filed his objections thereto and motions for other relief and/or a new triаl. A hearing on these motions began on Friday, December 6, 1974, and continued on Monday, December 9. During the noon recess respective counsel engaged in discussions and apparently arrived at terms of settlement based on an offer of the defendant. When court convened at 2:00 p. m. defendant‘s counsel orally stated into the record the terms thereof, which involved reference to certain paragraphs of the November 11, 1974, judgment.
Inasmuch as it is the position of the plaintiff that he repudiates the stipulation, the following is noteworthy. A part of the record, relied upon by him in support of his pоsition, is:
THE COURT: All right. Mr. Klein, you have heard your counsel read into the record, part of it by reference to paragraphs. I don‘t know whether you have been able to follow it or not.
MR. KLEIN: I haven‘t followed it, Your Honor.
THE COURT: Do you understand it?
MR. KLEIN: I am relying on my counsel. At this point, I haven‘t been able to read it.
As opposed to the foregoing, a part of the record upon which the defendant places reliance is the following response of the plaintiff which occurred later:
By way of the record, I accept the stipulation and I so understand. Spoken by Robert D. Klein.
Speaking in generality, the offer made on the defendant‘s behalf which was then agreed tо by the plaintiff and his counsel reduced the properties being awarded to the defendant in the amount of about $200,000 and increased the value of properties being awarded to the plaintiff in that amount. Subsequent thereto, on December 18, 1974, the trial court made further findings and entered a decree in conformity with the stipulation, and from which this appeal is taken.
Plaintiff‘s arguments that he should not be bound by the stipulation are: that he
Plaintiff advances the proposition that it would be neither fair nor proper to enter a “consent decree” purporting to be based on the agreement of a party who does not agree thereto at the time of final submission to the court. This appears tо be a sound proposition when applied to appropriate circumstances.3 But it is also true that the same rules apply to binding parties to such an agreement as apply to any other agreement. If there is any justification in law or equity for avoiding or repudiating a stipulation, and he timеly does so, he is entitled to be relieved from it, otherwise not.
Proceeding beyond what has just been said, we make several observations about this stipulation: the first is that the issue as to whether plaintiff agreed to and should be bound by the stipulation was one of fact for the trial court to determine; and it was not convinced that the plaintiff did not understand and voluntarily agree to the stipulation.
This would seem to sufficiently settle the issue. But even if it be assumed, as the plaintiff contends, that he either did not understand and/or was subjected to duress in agreeing to the stipulation; or that his agreement was timely and properly withdrawn, these further observations are applicable: It is the established rule that a stipulation pertaining to matters of divorce, custody and property rights therein, though advisory upon the court and would usually be followed unless the court thought it unfair or unreasonable, is not necessarily binding on the court anyway. It is only a recommendation to be adhered to if the court believes it to be fair and reasonable.4 In addition to all of the foregoing, there is no reason that the trial court cannot consider what was proposed by the parties as a stipulation, and what was said by them or their counsel about it, as part of the total facts and circumstances upon which to fashion what in his judgment is a just and equitable decree.
Under the circumstances shown, particularly the fact that upon his analysis of the total circumstances the court indicated in his judgment of November 11, 1974, that the defendant should have $200,000 more in assets than the present decree gives her, and the plaintiff $200,000 less, it is obvious that the trial court did not regard this latter allocation of assets as in any degree unjust or inequitable to the plaintiff. Consistent with the latitude of discretion necessarily allowed to the trial judges in dealing with problems of the character here involved, we are not persuaded that we should disturb the decree.5 (All emphasis herein added.)
Affirmed. Costs to defendant (respondent).
HENRIOD, C. J., ELLETT, and TUCKETT, JJ., concur.
MAUGHAN, Justice (dissenting).
The power of the court to render a judgment by consent is dependent on the existence of the consent of the parties at the time the agreement receives the sanction of the court or is rendered and promulgated as a judgment.1
This general rule, in my view, is dispositive of the matter before us. There was no stipulation, because one of the parties withdrew consent prior to judgment. The withdrawal was seasonable, and prior to аny change of position by the parties, in reliance on the terms of the proposed agreement.
Two well-reasoned cases2 deal specifically with this general rule. In Burnaman it was said:
A valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party‘s consent thereto may at onе time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.
In Van Donselaar, it was the court‘s opinion that:
If no agreement was in fact made, or equally if one of the parties had refused to be bound by it, to the knowledge of the court, then the court had no right to enter a consеnt judgment.
For the same reason, I think the court had no right to refuse to allow plaintiff‘s trial counsel to withdraw, until after the judgment had been rendered.