*1 disputed press the The evidence. officers attempt
in this case made no obtain
search warrant. For reasons discussed
above, I do not think the circumstanc- justified
es this failure.
ZIMMERMAN, J., concurs in the DURHAM,
dissenting opinion of J. NEWMEYER,
Kаthryn Myrna Respondent, NEWMEYER, Paul Defendant Appellant.
No. 19183.
Supreme Court of Utah.
Nov.
thryn also was allowed to take an income couple’s tax deduction for the minor child year tax Jeddy for the required pay month support $200 child and was awarded the tax deduction for the years minor child for all the following 1982. Jeddy challenges aspects numеrous However, division. he concen- trates his attention on the division of the equity in the challenges home. He findings on the relative contribution of party each and the current value of the Regarding home. the first of these issues —the contribution of each con- —he tends that the trial finding court erred in that should receive credit for sub- Richman, M. City, Glen Salt Lake stantial amounts she received from inheri- appellant. tances that were invested in the homes early in the Reading, Spence,
J. Bruce Michael W. City, respondent. Salt Lake estate, dividing In the marital may concerning make such orders ZIMMERMAN, Justice: distribution and as are equitable. 30-3-5(1) Utah Code Ann. Kathryn Newmeyer brought § (1984 Supp.1987). making & such or- husband, against this divorce action her ders, permitted the trial court is broad lati- Jeddy Newmeyer. granted The trial court tude, judgment lightly and its is not to be Kathryn custody couple’s minor disturbed, long so as it exercises its discre- child and awarded her the bulk of the tion accordanсe with the standards set erty, per year alimony, one dollar and Jones, by this Court. 700 P.2d Jones v. attorney Jeddy appeals. fees. He con- 1072, (Utah 1985); 1074 Pusey see v. Pu- tends that the incor- division was 117, sey, 728 P.2d It is rect, that should not have been appealing party therefore incumbent on the any alimony, awarded and that evi- provе trial court’s division vio- dence is insufficient to an award of Jones, standards, see, e.g., lates those attorney agree only fees. with the We 1074, P.2d at or that the trial court’s factu- third contention and vacate the award of findings upon al which the division attorney judgment fees. The is otherwise grounded clearly erroneous under Utah affirmed. 52(a). Newmeyers just The were married over twenty years. During they Jeddy Kathryn put period, concedes that During money three homes in from owned succession. her inheritances into holding However, periods, appreciated. argues each The homes. he that because automobile, by Kathryn triаl court awarded the inheritances came received rights pension plan, ago his many years all miscellaneous into the items, savings approxi- household his were committed to the common venture $7,000, home, mately against purchasing and an lien a the trial court equally couple’s current home the amount bound divide contribution parties. nothing in The court awarded between both There is home, equity balance of the in the valued in our cases that mandates such a result. $80,000, automobiles, appropriate miscel- The excess two treatment items, may savings marriage by laneous household into a one $17,000, рer year vary Compare one dollar from case to case. Work (Utah Workman, alimony, fees. Ka- man 652 P.2d 1982)(husband’s all property acquired prior supporting shals finding marriage properly of marital assets and then demonstrates that evidence, divorce), compared upon to be divided Jacksоn con (Utah evidence, 1980) Jackson, trary lacking 340-41 is so as to warrant (title property prior to clear to marital divorce conclusion that error has been binding distribution), 52(a); not on trial court’s committed. Utah R.Civ.P. see Har Preston, Campbell, Preston v. 706 line v. with (Utah 1982) (inheritance 1986); acquired during Corp., v. BMG *3 Scharf (Utah marriage properly 1068, 1985). present excluded from 1070 In valuation the assets), case, Jesperson Jesper Jeddy begun marital has of not to meet this son, 326, (Utah (not 1980) Therefore, reject burden. his we attack on for trial to the trial unreasonable court withdraw court’s determination of the rela equivalent from parties. marital the of tive contributions of the marriage). into assets The over Jeddy next attacks the trial court’s find- riding consideration is the that ultimate ings as to the of market value the current equitable division fair be be —that Jeddy’s expert home. witness testified ly parties, given divided between the their $122,000, that the was house worth while during marriage contributions the their Kathryn’s testified that of the value the circumstances at the time of the divorce. $112,000. judge house was The trial fixed Huck, (Utah Huck See $117,000. the value of the house at Based 1986). upon finding, appreciation that the the present case, In couple’s value of successive homes was $50,000. given Jeddy the treatment argues warrant the inheritanc- that any in fixing $117,000, es the trial court. of Under version the value at the court facts, apparent “split” readily improperly is that Ka- the difference between thryn paid the experts. argues lion’s share of the cost of the values fixed He money expert the homes from she received that his should have been believed. through Moreover, inheritances. the trial argument, This like the one that Jeddy by court was more than to fair cred- it, preceded nothing attempt an is but to iting equal appre- him with an share in the judgment have this Court substitute its for despite ciation value of the homes that of the triаl court a factu contested Therefore, his much lower contribution. al we issue. This cannot do under Utah conclude we that the trial court exercised 52(a). apparent In its discretion within the bounds set our recognition proposition, Jeddy this cases when it credited with the legal argument this masks claim as put inheritаnces she into the homes. contending judge that the trial acted im
Jeddy disputes splitting also properly the trial court’s the difference between argument is, course, experts. factual determination of the each the That amount purchase lacking in utterly elementary contributed toward the merit. It is confliсting judge the homes. There was evidence that a not bound to believe one point on this testimony at trial. Evidence Ka witness’s to the fixed total exclusion thryn’s probable $55,000 acting contribution at to another witness. When $60,000 Jeddy’s $12,000. fact, to as the trier of at enti Jeddy’s present give conflicting challenge opinions tled tо whatever findings weight appropriate. factual he or she to relative deems See Tri-O-Inc., parties contributions of the to amounts Groen v.
nothing 1983); more than attempt retry to see also Goodmundson v. Goodmundson, appeal. sup matter on There was evidence 201 Mont. (1982)
porting
positions
(in
parties.
аdopting proposed
of both
It
val
assets,
for the trial
con ues
may
was
court to resolve the
for marital
trial court
aver
age conflicting
given by
flicts. We will not
experts
overturn such a factual
values
solution).
appellant
Therefore,
resolution
unless the
first mar
arrive at an
living
court did not
the standard
that the
en-
hold that
the district
we
determining
Although working
married.
joyed
that the
its discretion
abuse
divorce, during
of the
home
the time
course
of the
value
Jeddy,
of her two decades of
argues
Jeddy next
employed only episodically,
Kathryn with the
improperly
credited
periods,
low-paying jobs.
and at
brief
the minor child be
1982 tax deduction for
opportunity
She did not have the
to build
prayer
under the
for relief contained
cause
up a retirement fund. Yet the trial court
action,
complaint in
she
in her initial
give
Jeddy’s
did not
her
interest
Jeddy
deduction.
asked that
be allowed that
pension. Finally,
suggests
complaint
amend her
did not
pros-
has better future income
therefore,
relief;
change
prayer
pects
Kathryn.
light
than
these cir-
Jeddy argues,
the trial court lacked
cumstances, however, Kathryn only re-
her
1982 tax deduc
authority to award
ceived an
award of one dollar
pleadings,
tion. Whatever
state
presumably
preserve
right
yeаr,
trial,
that at
the en
the record indicates
seek an increase should there be a material
*4
the 1982 tax deduction became
titlement to
change in
in
the future.
dispute
parties
the
a matter
between
facts, Jeddy’s
Given these
claim that the
adjudicated
objection. Under
without
awarding
in
trial court abused its discretion
15(b),
a trial
Utah
any alimony
utterly
See,
is
without merit.
permitted
to decide issues that are
Stephens,
e.g., Stephens v.
728 P.2d
(i) they
by
pleadings
not raised
992-93
(ii)
parties
failure
are tried
Jeddy’s final contention is that the
pleadings
initial
to conform to
to amend the
awarding
in
trial court abused its discretion
way impairs
in no
$1,423
Kathryn
attorney
in
An
fees.
ability to
such an issue.
resolve
attorney
in
cases
award of
fees
divorce
requirements
these
were met. We
Both of
supported by evidence that it is
“must be
proper
therefore conclude that it was
reasonably
in amount and
need
reasonable
to consider the issue.
party requеsting the
ed
award.”
Jeddy’s
regarding
other contentions
Huck,
(citing
While circumstances, proves I counsel am con- devoted unique set of own consistency per hour, in treat- 17 to 18 hours at approxi- or $80 cerned with the lack property. mately hour, With- 14 to 15 hours at ing per and donated $100 inherited rules, each takes even 28 to 29 hours at Keep- $50 more definite hour. out ing in particular that the mind that the trial itself took a his or her chances full day assigned pretrial hearing to hear the case on that and that there was a day perceive deposition it to be fair and on and at least one tak- given will counsel, such en I equitable to divide or not to divide defendant’s have no diffi- general culty taking judicial property. believe that some notice that the fee of plain- articulated and rules should least be was reasonable. view of need, inappropriate deny tiff’s I think it followed. her the assistance ordered Burke, Burke v. opinion in The Court’s court. supra, repeated the factors which we enun- Pinion, ciated in Pinion v. 92 Utah (1937), generally to be
P.2d 265 that are making property divisions.
considered however, guidance, given as to
No appropriate to divide in-
when would be property.
herited or donated We would be
doing to the Bar and to the trial a service to more in our treatment bench be definite CITY, LAKE SALT property. of such It is no wonder that so Rеspondent, many involving cases such have “losing” appealed, been since the
comparing other his or her case with cases TUERO, Appellant. John Defendant and decided this Court can discern no ration- No. 870018-CA. disparate al basis for the treatment he or she has received. Appeals of Utah. Court Legislative guidance helpful would be Nov. question. Utah Code Ann. 30-2-1 § *6 expresses legislative intent that acquired gift
of a married woman
inheritance should remain her estate and
property. To what extent should that rule
be modified when a divorce occurs? See Izatt,
Izatt v.
DURHAM, (concurring Justice:
dissenting). except majority opinion
I concur in the
for its vacation of the award of
fees. The set standard reasonableness correct, majority entirely
forth discovery, pleadings,
but view of the trial,
pretrial appearances, day’s full issues, complexity
number and all of patent record
which the face of the
(and therefore obvious also to the
judge), think that the trial court had
sufficient information to assess reasonable- fees
ness. Plaintiff established that