*1
1201
30,
32, 36-37,
Co.,
phone
491,
17
2d
404 P.2d
33
& Telegraph
Utah
117 Ariz.
573
course,
(1965).
resolving
(1977);
process
Of
P.2d 891
Wille v.
Bell
Southwestern
Co.,
ambiguities
require
Telephone
755,
will sometimes
the con-
219 Kan.
evidence,
Building
Federal
sideration
conflicts
Service Moun-
v.
Telephone
Co.,
tain
&
by
need to be resolved
States
76
Telegraph
524,
Thus,
House,
trier of fact.
in Universal Invest- N.M.
Gas
Inc.,
336,
Carpets,
v.
16 Utah
Inc. v. Southern Bell Telephone
ment Co.
2d
Tele
&
338-39,
Co.,
564,
graph
175,
400 P.2d
289
566
we
N.C.
Interwest, Associates, Utah, Inc. v. Design But the of a meaning law,
contract remains a question
resolved the court. When the existence
of a identity contract and the of its
are not issue and when the contract
provisions are clear complete, Gaylie SAVAGE, Ann B. Plaintiff meaning of the can appropriately contract Respondent, be resolved on summary judg- ment. Hibdon Eg., v. Truck Ex- Insurance change, supra. SAVAGE, Appellant. Neal Defendant and case, In this the contract provision No. 17855. the Telephone limits Company’s liabili ty “in any case the omission of all Supreme of Utah. Court part” of an advertisement is clear. It is Feb. 1983. ambiguous rendered provision the other declaring applicable long contract “so
as” the appear items in the directory. That
provision open question leaves the- omission,
effect of an the specific but treat question
ment of that provision other
resolves it.
Our decision to a summary judg- affirm
ment giving Telephone effect to the Com-
pany’s liability directory limitation of
errors or omissions is supported by a score jurisdictions, including cases from other
the following whose reasoning is most com-
pelling: Mendel v. Mountain States Tele- *2 Howard, Provo, Young, Jackson K.
Allen appellant. for defendant and Christensen, City, Harold G. Lake Salt plaintiff respondent. DURHAM, Justice: defendant-appellant seeks reversal of the decree of divorce entered the lower action, that the trial claiming parties’ in its erred division alimony, marital and its award of fees. We af- attorney’s firm. and the defendant were 16,1960. At the February
married on time of the marriage, owned an automobile and stocks and bonds worth sev- eral thousand dollars. in Savage
owned one-third interest Coal Co., & Lumber small business founded operated by family members. His full- company time with that com- employment years menced in three before the mar- riage. present, From that time to the employment with defendant has continued company and its successors. Twelve corporations have evolved from earnings Coal & Lumber. Their combined Turner, Utah, in 1979 were in excess million. The Turner v. P.2d 6 $1.8 $133,370; income in 1979 we stated that: approximately received Although may this Court weigh the evi- personal holdings, in income from her dence judgment and substitute its gifts largely family. which were from her actions, that of court in divorce university training, Both al- lightly Court not do so and mere- *3 did though complete not a ly judgment may because its differ from degree. plaintiff taught The for school two that of trial A judge. trial court’s years following marriage, her and thereaft- apportionment of property will be er until time of divorce was a full- disturbed unless it such a works manifest time par- homemaker and caretaker for the injustice or clear inequity as indicate a During marriage, ties’ three children. abuse of discretion. the parties enjoyed high a of liv- standard (citations omitted) Id. at (emphasis add- ing garden- which included household and ed). Utah, See also McCrary McCrary, services, ing entertainment, travel and and generous a support level of all of the for objections The defendant’s family’s activities. Compa trial court’s division Savage of the The trial court divided the personal prop- nies stock focus the court’s failure to erty of the pursuant stipula- to their stock, determine a value for the the absence tion. The received the marital res- of any ruling consequences of tax idence with all of the a build- furnishings, division, and the tie perpetuation of a lot, car, ing a savings own and securi- parties by between the virtue of the contin ties, personal and her all belongings, of co-ownership ued of in a closely held $243,827.60. which were valued at The de- corporation. However, vo a review of the stock, securities, was fendant awarded his transcript post-trial luminous and profit sharing personal account and his be- of the clear memoranda makes it $221,- all of longings, which were valued at that the virtually had no feasible The 085.27. court divided the stock in the an division alternative to of Savage Companies, with 60% awarded to great stock. Three witnesses testified at plaintiff. the defendant and 40% to the length Savage about the value of Com The defendant was also to pay ordered qualified Each an panies stock. was well $2,000 month in per alimony, per expert each agreed and on most of (for month child in a per total principles applicable to the fundamental $1,500), of plain- and toward stock, corporate valuation of attorney’s tiff’s fees. fact are including the that there no univer ap- defendant raises three issues on sal, well-established formulae for determin first, peal, claiming: that the trial court ing price-earnings appropriate ratios portion abused its discretion a awarding two wit such a defense corporation. of Savage Companies plain- stock to the testified, par that respectively, nesses tiff; second, that the amount of corpo ties’ interest in the one-third excessive; awarded to the was and $1,079,207. rations was worth third, attorney’s that no fees should have plaintiff’s expert testified to a value been awarded. $4,072,000, higher dollars nearly 3 million In a is of the defend proceeding, highest divorce well than the estimate was established that the trial court Each of the witnesses permitted is ant’s witnesses. adjusting subject considerable discretion the fi to meticulous cross-examination counsel, par opposing strengths nancial interests ties, opinions its to a each pre actions entitled weaknesses in of their were Cox, sumption e.g., exposed. Each of the validity. scrupulously Cox expert testimony appeal Mitchell v. claims on Mitchell, Utah, tri- entirely of the other was discredited at present the entire experts Virtually for both trial court. disagree. The
al. We
plausible,
testimony
corporations
developed
credible
value
presented
sides
and,
three of
it is
and all
while
true
respecting
during the
acknowledged
very high subjective
responsibility
took
that
no
ap-
judgment” factor
their
“professional
business,
of the
assumption
it was her
circumstance, the trial
praisals.
In such a
possible the
which made
domestic burdens
party
found
neither
legitimately
full-time
participation
value
of the
proved
by preponderance
entitled to fair
is therefore
business. She
therefore,
that,
the court
share of the financial benefits
equitable
determine value. The
accurately
could not
joint
virtue
their
efforts
accumulated
on that
issue reads:
finding
fact
court’s
marriage.
in the
disparity
great
between
Because
argues strenuously that
The defendant
par-
owned
the value
the stock
court’s in-kind
consequences
tax
expert
witness-
*4
represented by
ties as
disaster for him.
mean financial
distribution
by
parties,
each of the
the Court
es called
level which the stock is
at
Depending
accept
party’s
either
finds that
cannot
purposes,
tax
the defendant’s
valued for
accurately reflecting
testimony as
expert
that,
the
as a result of
stock
evidence was
accordingly rejects
the
said value
transfer,
would
over
he
incur
same.
level)
(at the
million
federal
taxes
$4
finding
supported by
is
entirely
This
$100,000(at
level).
over
the million
It is
it.
we will not overturn
record and
post-trial
from a review of the
evident
of the evidence to
In view of
failure
briefs,
parties,
memoranda
inabili-
establish
and the defendant's
that
and exhibits at
testimony
share even under
ty
pay
plaintiff
to
her
in-kind
impact
issue of the tax
of an
distri-
valuation,
trial court
virtu-
the low
had
fully
thoroughly presented
bution was
in-kind distribution
ally no alternative to an
by
to
trial court. The
and considered
The defendant
insists
stock.
to
reason
the trial court’s failure
include
for
lump
plain-
a
to the
only
pay-out
that
sum
is
ruling
liability
any
on
tax
evidenced
would
fair to
tiff in lieu of
interest
be
denying
minute
by
entry
the court’s
However,
proposals
him.
all of his
Trial,
Motion for New
defendant’s
depend
in that
on the low
regard
evidence
issue of who will bear
tax
states: “the
rejected
properly
by
valuation which was
is
until the same
deter-
liability is reserved
quite
It is
the court.
clear
defend-
continuing jur-
trial court has
mined.” The
make a
ability
lump
ant has no
to
sum
time,
At this
there
isdiction over
issue.
pay-out over time in an amount
excess of
knowing
is no
what the size
that
way of
figures
experts
testified to.
low
his
points
tax
will be.
liability
As
Even under his
proposal,
appeal,
out
on
if the defendant
in her brief
dramatically
to
his
would have
reduce
with the
prevails on his view value
U.S.
in order
monthly support
to have
payments
Service,
liability
Revenue
the tax
Internal
to
enough
pay
cash
income
from his
$62,000. Furthermore,
could
as low as
as
be
proposal
her share. That
would
out, the trial
already pointed
we have
to
virtually require
subsidize
an
virtually
no alternative to
the defendant’s
to her of her own
payments
adoption
short of a wholesale
distribution
properties.
interest
in the
We
business
value and
approach
pay-
the defendant’s
passing
note in
propos-
that the defendant’s
that
ment. The trial court found that
value
one-third,
depends
al also
on a
two-thirds
by
preponderance
proved
split
plaintiff.
between
In
him
properly in
and therefore acted
20-year length
marriage,
view of the
of this
pay-out
to structure a
schedule
refusing
parties
and the fact that
full-
both
devoted
based
it.
period
that
throughout
time efforts
to the
argument on
defendant’s final
ends of the
we see no
The
marriage,
abuse
interaction
split
discretion in the
is that
continued
40%/60%
fashioned
issue
by co-
chief
between these
necessitated
functions of an
award is to
is
ownership
against good poli-
of this stock
permit
to maintain as much as
cy generally.
that,
We agree
whenever
possible
same
standards after the disso
possible,
joint ownership by di-
continued
lution of the
enjoyed
those
spouses
corporate
vorced
See,
during the marriage.
e.g., English v.
avoided,
acknowledge
be
should
Utah,
English,
with approval those cases cited
the de-
plaintiff’s evidence
her monthly
showed
ex
fendant which set forth the
rationale
penses
$4,100, and
her accountant
that principle.
e.g., Frandsen v.
gross
testified that she needed a
monthly
Frandsen,
58 Hawaii
P.2d
total of
to net that much
because
Berry
Berry,
HALL, C.J., concur. pay substantial taxes having to of the stock. transfer STEWART, (dissenting): Justice HOWE, J., concurs. alterna- agree that there was “no I do not the stock tive to an distribution” It is not at all companies.
of defendant’s is an issue
unusual in where valuation cases estimates of ex-
to be determined that the I think a better widely disparate. in kind or-
approach than the distribution *6 court would be to remand dered the trial HILL, Respondent, Plaintiff and John F. the trial this case for a determination corpora- the actual value of the judge of HARTOG, Hartog, C. Dale James different, or more tions. That task is no Roberts, Defendants David B. difficult, kind of task which than the same Appellant. cases, con- performed must be in most tort cases, eases where an property tract No. 17933. damages award of is made. of Utah. Supreme Court notes, Furthermore, there majority Feb. 1983. compelling reasons to avoid joint ownership by distribution based family spouses
divorced of a members
corporation, especially when other spouses’ are also stockhold- families advantage
ers. It not to the certainly is placed
either of the in this case to be very relationship
in a close economic contention, every potential
has for further
friction, when litigation, especially with the parties having nothing
third to do will be involved. necessarily
divorce also
The economic interests of the other.
invariably be at odds with each