*1 Plаintiff, LYNGLE, Appellee Nadine Cross-Appellant, LYNGLE, Defendant, Appellant
Charles Cross-Appellee. 910057-CA, 910059-CA.
Nos. Appeals of Utah.
Court of
April (argued), Nygaard, Kirkham
Larry A. City, Vincent, Lake Salt Coke & Lyngle. Charles *2 Randy Ludlow, (ar- City S. Approximately Salt Lake year one after di- gued), vorce, Lyngle. for Nadine Wife contacted Warr Irene resolving
to ask
assistance
some terms
BENCH, BILLINGS,
Before
the divorce
and
decree that remained incom-
First,
RUSSON,
plete.
request,
at
JJ.
Wife’s
Warr
Ms.
$30,000.00“equalizing”
drafted the
prоmis-
sory
Next,
BILLINGS,
note.
Presiding
willing
Wife was
relin-
Judge:
Associate
to
quish her interest
in the condominium.
Lyngle (Husband)
Charles
and Nadine
$170,000.00
paid
Wife
in cash.
(Wife)
both
acknowledged
also
in cash
rulings involving an Order to Show Cause
paid
previously
had
to refurbish
brought
alleging
Husband failed
Wife’s
home
new
and a check from Hus-
to
provisions
with some of the
band in the amount of
for a total
parties’
divorce decree. We affirm.
$210,000.00.
cash amount of
Ms. Warr
also
drafted
second
promisso-
FACTS
ry note from Husband Wife.
to
Wife and
had, thus,
Ms. Warr testified that Wife
1985,
agreed
In
Husband and Wife
to
relinquished all
in the
interest
condomin-
years.
end
marriage
thirty-six
their
Af-
exchange
ium in
for a
total
division,
discussing
ter
property
and
plan
pursue
Wife did not
collection
mutually sought
and Wife
the advice of
rеmaining
Myers
Oliver
obtain
uncon-
was
according
entitled
com-
tested divorce.
plaint.
also
executed “Partial Satis-
subsequently
filed a
Judgment,”
faction of
dated
divorce November
1985. The com-
1987, in which she surrendered all interest
plaint
awarded,
stated Wife should be
in the condominium.
(1)
part:
proceeds
“The
of the condominium
Through
professional
as a
effоrts
Street,
at
located
3000 Connor
4 in
No.
Salt
realtor, Husband sold the condominium on
City, Utah;
Lake
said
property
real
shall
$220,000.00,receiving
October
1987 for
gross
free
all encumbrances and the
proceeds
net
proceeds
$250,000;”
shall
less than
(2)
proceeds
joint
“[t]he
In
again
December
contacted
Securities,
count at First Affiliated
said
assistance,
Ms.
clаiming
Warr for
proceeds
$44,000.00;”
shall not be less than
had not
(3)
Lyngle Brothers note dated
$30,-
from the
stock account and the
$30,-
November
amount
note.
Brothers
Ms. Warr
year
three
term
payable
interest
11%
subsequently drafted a demand letter to
quarterly.”
request-
further
Husband for these items. When Husband
ed Husband to
promissory
“execute a
comply,
failed to
Wife filed an
Order
payable
$30,-
amount
[Wife]
in July
Show Cause
and an evidentia-
per
000.00 with
of $500.00 month ry hearing was
before
scheduled
equalize
with no interest” in order “to
court.
property”
parties.
division of
between the
hearing,
At the
Wife claimed Husband
“Appearance
Husband executed an
owed her
Service,”
consenting
Waiver
ato default
$30,000.00Lyn-
stock account and the
divorcе.
gle
Wife ac-
A decree of divorce was
knowledged
$10,-
entered March
waiving
she 12, 1986,
Wife,
(1)
part:
owing
000.00 which remained
to her from
“[T]he
condominium,” (2)
“the
of the condominium. Hus-
account,” (3)
band
only
claimed Wife was entitled to
note,”
Brothers
“a
no
the amount
promissory
note” in the amount of
account as of the date
divorce de-
cree. Husband further contеnded
be-
Loan, 818 P.2d
promissory notes
Overland
the two
cause one of
Thrift
(Utah App.1991),which we review for
actually a substi-
by Ms. Warr was
“correctness,”
$30,000.00 Lyngle
Dyke Chappell,
Brothers
Van
tute for the
(Utah 1991),
according
had been
“no
note,
Lyngle Brothers note
Finally,
respect to
trial court’s
particular
in full.
deference” to the
*3
condominium,
Munns,
claimed Wife had
812
conclusion. Christensen v.
$210,000.00.
(Utah
a total of
already
App.1991).
received
P.2d
70
condominium,
Because the
the trial court determines a document
once
under the di-
was entitled
to which Wife
find facts
ambiguous
“proceeds
is
$205,757.50, Hus-
decree,
only
were
vorce
respecting the intentions of
overpaid.
Wife had been
band claimed
then our re-
on extrinsic
based
strictly limited.” Kimball v.
view is
judgment
a
The trial court awarded
(Utah 1985).
P.2d
716
Campbell, 699
$44,000.00,plus inter-
against “
all in-
then ‘review the evidence and
We
26, 1986, repre-
dating
est
therefrom in a
may
ferences that
be drawn
The trial
senting
joint
stock account.
supportive
findings
light most
Lyngle Broth-
court further determined
”
trial
fact’ and will not disturb the
trier of
by
paid in full
the substi-
ers note had been
“
if
on sub-
judgment
court’s
it is
‘based
The
Ms. Warr drafted.
tuting оf the note
”
stantial, competent,
evidence.’
admissible
that, due to Husband’s
ruled
court also
Doctor,
Belmont,
(quoting
Inc. v.
Id.
Car
to Wife
(Utah 1981)); accord
P.2d
83-84
635
amount of
overpaid in the
Wife had been
Co.,
Majestic Inv.
818
Valley City v.
West
respect
the condominium
with
(Utah App.1991).
P.2d
Wife
proceeds. Finally, the court awarded
$4,242.50 in
lieu
overpayment
this
subject
“if it is
A
is
document
and cоsts.
requested
constructions,” Progres-
plausible
to two
the trial
appeal, Husband claims
On
806 P.2d
Acquisition,
Lytle,
Inc. v.
sive
$44,-
by:
Awarding Wife
court erred
(Utah
are
App.1991), or its terms
as
000.00 instead of
as to
they create confusion
incomplete
so
account,
(2) awarding
joint
also
attorney fees. Wife
so,
stating
Although
specifically
court erred
appeals, claiming thе trial
matter,
court,
by its treatment
failing
to award
de-
language of the divorce
concluded the
$30,000.00 Lyngle Brothers note.
in-
to the amount
ambiguous as
cree was
proceeds from
paid to Wife as
tended to be
ACCOUNT
JOINT STOCK
agree.
account. We
decree awards Wife
The divorce
stock account.”
proceeds from
or
judgment
a
is “obscure
When
language
unambiguous
claims the
may
re
record
ambiguous, the entire
is entitled to
provides
the decree
construing the
purpose
sorted to for
which,
stock account
the funds
Corp. v. En
City
judgment.” Park
Utah
date of the divorce
as of the
(Utah 1978);
Co.,
P.2d
sign
Husband,
thus,
amounted
Land,
Land v.
accord
court erred
claims the trial
adopt
1980).
then
(Utah
The court must
“
responds that the
judg
make the
‘which will
construction
incomplete.
ambiguous and
decree is
reasonable, effective, conclu
ment more
correctly resorted
the trial court
sive,
brings which
and ...
”
evidence, including the more
to extraneous
and the law.’
harmony
the facts
into
complaint, to deter-
explicit verified divorce
(quoting
at 450
Moon
City, 586 P.2d
Park
language in the
meaning of the
mine the
Hanson, 535
Ass’n v.
Lake Water Users
decree.
resolving
(Utah 1975)). In
appropriate to consider
ambiguity, it is
ambigu
a document is
Whether
the document
law,
the context
which
v. both
question of
see Larson
ous is a
applies
“purpose
sought
was
time
sought
Mr.
accomplished.”
Acquisi- Myers’s
divorce,
to be
Progressive
obtaining
assistance
tion,
Furthermore,
cause cаrdinal rule of count.2 intentions,” give parties’ is to effect to the The trial looked extra- Miller, (Utah Williams v. neous evidence determine the amount to App.1990), ambig- when a divorce decree which Wife was entitled under this parties’ to the uous “extrinsic evidence as clearly sion of the decree. This evidence may intention be received and considered.” supports interpretation Id. We, provision this of the decree. there- fore, affirm the award of the fol court considered *4 account, Wife as stock lowing extrinsic evidence and determined with interest from March parties the intended to be to Wife as divorce account.” verified com ATTORNEY FEES
plaint stated Wife should awarded be appeаls Husband also the stock account at First attorney award to in fees incurred Securities, Affiliated said shall Cause, bringing the to claim- Order Show $44,000.00.” Myers, not be than Mr. less ing findings there were no of need or rea- complaint who drafted both the and the sonableness. decree, it was intent “at all testified his the complaint times to have ... be the Husband first claims an award of attоrney sup same as the decree.” He also testified in this fees action must be ported understanding by Husband and had “an evidence of Wife's financial need. changes up comprehend that the value of stock fails and Husband to the down,” $44,- suit, specific figure proceedings. the and nature of these In this placed complaint seeking in pro modify 000.00 was the to Wife is not to obtain or “[fjrom provisions tect Wife to diminution the value divorce decree enforce the but Myers of the stock the of a In an account.” Mr. decree she obtained 1986. $44,000.00 figure provisions stated the action to enforce the a divorce omitted decree, “[bjecause decree under an award of fees is based standing parties discretion, the solely upon that it would not trial re the court’s given gardless less than forth in financial need of mov complaint.” ing party.4 Husband testified at the upon merger, estopped asserting 1. relies Husband the doctrine of or is from additional claims stating a valid and "when final for the under the divorce decree or that her claims rendered, payment money оriginal is by equitable should be barred doctrine of Ford, extinguished." Yergensen claim is v. arguments laches. We detail, not address these do (1965); Utah 2d 402 P.2d accord them and as we find without merit affirm Davies, Adams v. 107 Utah 156 P.2d the trial court's determination on these issues. Therefore, (1945). argues any Husband claims embodied within the divorce agree upon 3. Both the date which the merged were within the divorce decree. This begins corrected March argument without merit is as the court did 1986, the the divorce date of decree. it, along used not enforce but extrinsic with other determine the See, Beardall, e.g., Beardall v. 4. meaning divorce decree. (Utah 1981) (court upheld “trial court’s exer- awarding attorney cise of its fees discretion” any Finally, argues amounts hе seeking decree enforce divorce with- wife decree, including pro- under the owed Wife need); McKay out wife’s account, evidence of financial ceeds were re- McKay, 2d 13 Utah solved Wife’s execution a release of her (”[I]t account, within court’s discretion to "Acknowledge- [trial] interest in the stock person contempt Payment," determine is in whether ment of Judgment," a "Partial Satisfaction of court for failure with the terms of a he made to Wife in signed attorney’s he 1987 when the documents Ms. Warr decree whether fees prepared. argues proceeding....”); He further has waived should be in such a allowed concerning only in early the trial court erred two
Husband also claims attorney fees as there was sions in her divorce neither of in its award of reasonableness. Dur- which involved the no determination of First, hearing, “equalizer” ing evidentiary Wife’s counsel because the $3,350.00 attorney created, proffered request- a claim for note had never been time, Second, stip- Husband’s counsel fees. At this ed Ms. Warr to draft one. because ulated that such fеes were “reasonable.” had modified their hearing, proffered After the Wife’s counsel understanding respect to the condo- a claim for additional fees of sold, request- minium months it before calculated at the same rate as those sub- reflecting ed Ms. Warr to draft documents during hearing, prep- incurred in mitted that modification. Wife testi- Wife, thus, closing argument. аration for fied none of the documents Ms. Warr requested attorney fees served as a substitute for the outstanding. Brothers note—it remained stipulated to the reason during ableness of testified the 1987 transactions prof evidentiary hearing. Additional fees obligation pay resolved his hearing at fered after the were calculated Brothers note. He testified thаt when he Furthermore, the same rate. sign went to Ms. Warr’s office to additional *5 attorney specifically court found Wife’s documents, explain Ms. Warr did not just,” in of com fees “reasonable and view $30,000.00 promissory the note she munity complexity the standards and Rath- concerned the condominium. We, therefore, case. conclude the trial Husband, er, according to Ms. Warr told attorney court’s award of fees to Wife was Lyn- the him the note was a substitute for proper. note, up he clear gle Brothers “would a check for entire divorce” with [his] attorney Wife seeks an award of immediately he wrote. which appeal. Generally, fees on when the trial check, points to the memo on this court awards fees а domestic action Set,” of the fact “Bal on Div as evidence party substantially prevails the then who obligations completed all of his that he had appeal, on fees will also be awarded to that he wrote under the divorce decree when Crouse, party appeal. on See Crouse v. he further testified this check. Husband (Utah App.1991).5 The in full. Thе trial paid this substitute attorney trial court awarded Wife Husband, stated, court, with agreeing with fees, large part, prevailed, and Wife has emphasis: our appeal. at on we award Wife entry torney fees on and remand for from the sale of the The of reasonable fees. home should be determined sold, actually that is: time the house was BROTHERS NOTE
LYNGLE paid for $205,757.50_ amоunts [T]he up fix the new payment and of claims has never received the down she pro- loan payment for the Brothers note as condominium required in the divorce decree. Wife testi ceeds Febru- and the balance from initially sought
fied she Ms. Warr’s counsel [Husband] Stuber, away fees” funds in costs counsel v. 121 Utah "to fritter Stuber (1952) (In alimony “by bringing repeated wife’s suit to enforcе under the decree received actions.”). payments, court stated: "It was ex-hus- [her up agreement to his failure to live band’s] this action. There can forced her to commence (1989); Ann. 30-3-3 § 5. See also Utah Code attorney’s fees are allowable in be no doubt that (Utah Bagshaw Bagshaw, v. Tribe, type.”); Utah actions of this Tribe ("We party pay may App.1990) ordеr either (1921) (When party one "is 202 P. § Utah Code Ann. 30-3-3 fees under against” compelled bring proceedings another (1989), attorney fees incurred and this includes compliance a to enforce appeal.”). on may trial court award reasonable moving party party so that is not forced to the ary check argues number court found the $210,000.00 $4,242.50 “proceeds” аmbiguous over the term with respect to net sale of the house. account and looked to the items,
complaint, among other to determine Wife claims the award of As for Brothers note un- “proceeds” of the condominium is similarly paragraph der the Decree Di- fc. of ambiguous, should be treated same vorce, 7, promissory Exhibit defendant's manner, and the trial erred in note, day February, dated the 4th doing so. full, has been this satisfies record clearly The reveals trial court obligation. this This is consistent with did phrase “proceeds not consider the finding the Court’s and determination re- ambiguous. condominium” The court garding paragraph 4.a. of the Decree stated: relating Divorce to the from the sale of the cоndominium. home be determined from the Wife claims court erred con- actually sold, time the house was that is: cluding Brothers note had been $205,757.50. Where the amount is not interpretation because its on property, stated real which is not a “pro- sion of the decree asset, liquid proceeds normally are ceeds from the condominium” was in error. considered to be what the house sells for The trial court determined should re- highest based best offer made ceive the actual net from the sale period. within reasonable time Al- condominium, $205,757.50. fluctuate, though may value the val- improper interpretation claims this was an normally ue of house cannot be dissi- points pated by of the decree. out that onе of the She at the ex- *6 pense addition, stated the other. In Wife should re- both $250,000.00 have a ceive no less than measure control be- proceeds as respective cause their interests must condominium. At the hearing, Wife usually conveyed aby deed. There- testified request, at Husband’s fore, paid pay- the amounts for the down agreed quit-claim to Husband all of her fix up ment and of the new condominium in the exchange condominium in proceeds loan of February $31,491.12 for in in paid cash Husband No- and the balance vember of a promissory for note February 1987, check [Husband] $170,000.00 paid in $8,508.88 totaling $210,- number a check paid for the net over February of promissory sale This house. amount for for total of credited to defendant in lieu of requested quit- Ms. Warr to draft the Thus, attorney’s paragraph his fees. 4.c. claim deed promissory and the Decree of fully Divorce will be correspond note to with Wife’s Hus- satisfied. agreement new concerning band’s the con- Therefore, believing dominium. she was not We do find fault with the trial court’s entitled to receive determination as to “the condominium, Wife, nevertheless, condominium.”6 The trial court concluded consented to paid receive under this Lyngle Brothers note in compromise pursue remaining and not process completing transactions engaged for which Wife Warr. Ms. Based law, say, 6. Because we cannot as a matter were we free to consider such evi- phrase dence, that thе “the from the condo- we would find the and the ambiguous testimony minium" in the decree is persuasive or that the of Wife and Ms. Warr con- purpose court's cerning determination it meant net of the documents Ms. Warr error, proceeds after prepared sale is we are constrained and the funds to which Wife was enti- disregard extraneous evidence of its tled undеr the decree. us, say on the record before we cannot by accept- Utah,
trial court abused its discretion Appellant, STATE of Plaintiff and ing Husband’s version of facts. We are not free to our substitute HUNTER, Gregory T. Defendant that of the trial court. we af- Appellee. firm the trial court’s determination that Brothers No. 910319-CA. note in full. Appeals Court of of Utah. April
CONCLUSION sum, In we conclude that because the respect to
divorce decree is provision concerning account,” the trial extraneous evi- considered and,
dence based on that awarded $44,000.00. Further, the trial court
did abuse discretion $4,242.50. Finally, fees of find no trial court’s deter-
we error
mination that Husband has
Brothers note full.
RUSSON, J., concurs.
BENCH, Presiding Judge (concurring in
part dissenting part):
I concur with the result reached opinion regarding
main I
count and the
dissent, however, from the awards of attor-
ney fees.
If ambiguous, majori- the decree is as the holds,
ty how can fees be awarded Wife theory
on the that Husband did not compliance
with the decree? He inwas plausible interpretations
with one of the simply
the decree. This action is a clarifi- provided.
cation of what the decree Since need, showing
there has been no attor-
ney fees are not awardable either at trial appeal.
or on The award of particularly troublesome cross-appeal.
view of the failure of Wife’s
I would reverse the fee award deny appeal. fees on Murphy,
R. Paul Dam and J. Kevin Van City, plaintiff appellant. Salt Lake