*1 1244 law, living adjuncts cation of the common which for rea- standard of in her
son herein, give refused we think the trial sons discussed to rec- Therefore thereto. ognition his to of this character justified in determination trusts involv- ing any However, property.5 this trust is for kind of and effect essence Ander- evidence here is that there is of Norma B. substan- the use and benefit creditor, personal property, son; plaintiff including tial that as to the stock statute, Enterprises, by the Anderson valued at it is declared void Section $145,000. 25-1-11, Accordingly, useful purpose no U.C.A.1953. being would served concerned also makes the conten Defendant property may whether the real be sub- of the trust tion that because assets jected plaintiff’s judgment. than conveyed the trustee more judgment The is affirmed. Costs to this years bringing ac three before plaintiff (respondent). tion, property particularly that the real conveyed to Navalco and deeds was so HENRIOD, J., ELLETT, C. recorded, action is barred Section MAUGHAN, TUCKETT and JJ., concur. U.C.A.1953, limits to 78-12-26(4), years by a three actions created statute. rejected correctly
The trial court this con
tention as without merit. pertinent: observations are
These against any
No statute of limitation runs
cause of action until that cause of action plaintiff being. into The comes had Utah, PITTS, STATE of In the Interest of cause of action to attack this trust until he Pitts, Vallarey L., persons Erika andR. un- attempted judgment to enforce his years age, Gandy, Appel- der 18 against trust was asserted him as im lant. pediment collecting it. While this case No. 13882. se, per does not involve fraud the situation Supreme Court of Utah. analogous; principle ap and the same May 14, 1975. plies that : a cause of action based on fraud, the statute of does limitations
begin to run until the fraud is discovered.3 recording
The of the deeds to Navalco give plaintiff constructive notice
only conveyances, put those but would
him on nothing notice of concerning this
trust.4
Defendants argument also make the
that the statute scrutiny under covers
personal property and therefore could not part
affect the of the trust that consists of
real property. The statute is but a codifi-
78-12-26(3),
spendthrift
3. Sec.
U.C.A.1953;
5.That
trust
the benefit
Madsen v.
Madsen,
entirely
grantor
uniformly
72 Utah
269 P.
himself is
held
invalid and that
can reach the trust
creditors
Edwards,
Thus different
from Smith v.
81
property,
above;
2
see authorities
footnote
plaintiff.
Utah
17 P.2d
relied
745;
720;
Trusts
Am.Jur.2d
C.J.S.
That case dealt with the statute of limita-
Geary
Cain,
93 A.L.R.
But cf.
fraud,
78-12-26(3),
tions on
now See.
U.C.A.
268,
HENRIOD, Chief Justice: Appeal the from denial of a motion to juvenile vacate a permanently order depriving parents custody the termi- .of parental all nating relationship of children, their two infant girl minor placing adoption. them with an agency for 16, adjudged (July It is that said order 1974) prayed. be vacated as case solely This is here on the record be- having us fore to do with the motion vacate, the the evidence adduced thereon, it, hearing denying Oc- order 17, 1974, permanent tober order deprivation, July 1974. The two orders delivery above of the children followed Pitts, paternal grandmother, Department ato Welfare “shelter” on or as the (because, November reflects, financially incapa- record she was supporting them). ble of Carlson, employee of the State One Services, Division of testified petition he filed a November us), (which is before record allegations that the chil- which contained acquaintance at dren had been left with an Hotel, Baywood days later where some fire, caught the room and the children Hattie;1 thereupon were delivered to parents un- the whereabouts of the were known, had failed supervision provide adequate support and heard petition This for the children. thereto, said January 1974. Prior Carlson, post- 1) he had “checked with the if the or mother were office see father receiving in the Salt Lake listed as mail He Valley,” receiving a “No” answer. Baywood (after Hotel checked the then apparently a transfer of fire that caused County Esplín, Lake Gordon F. Salt par- Hattie), if the children to to see City, ap- Service, Legal Salt Lake Bar there, getting mail then checked ents were pellant. to see power company local Romney, Gen., customers, Atty. they being B. Frank told were Vernon Nelson, Gen., Atty. not, Asst. clerk’s of- V. Salt after he filed in the which pub- City, fice, petition affidavit for State. with an above, Who, stated delivered them shelter. thereof, ier, lication notice that’s Lake, all after returning to Salt had —and he did. upon inquiring the former as to the children, whereabouts of her Matt- Meyers, completely One who is unidenti —when son told the mother in no uncertain terms record, fied in things said he did two that “she had been permanently deprived” after inquiries, Carlson had made of the children and that “the children were in January February, were done so that *3 being placed adoption, and that she they petition were long done after the was them,” could not see would Mattson 30, 1974, filed on November and of —nor hence “tell her the they foster home at which probative no value whatever in connection placed” (the were and that she mother) diligence” locating with “due in upset. seemed parents.2 above, Based on the evidence as recited Smith, worker, A Mrs. Lu D.F.S. Jean juvenile finding made a of fact testified that she knew Hattie when the that “The efforts of the . Divi- brought latter the children to the shelter Family sion of Services locate an ad- parents and said she didn’t know where the parents dress diligent pursu- baby were. checked She with the sitter 55-10-88, ant to Section Utah Code Anno- Baywood Hotel, who had been at who tated 1953.” didn’t know where were either. Mattson, Betty another em- D.F.S. It is suggested that the evidence ployee, knew the children’s mother. This clearly recited above indicates that there employee said she filed a Petition for Per- inquiry” “diligent was no made and that Deprivation parental manent rights of the dispositive this matter in is of the favor May 9, 1974, since “the had not children, if, mother and of these father made contact” with the children “since No- no other reason than that there is no evi period vember ... a of more whatsoever, any dence of effort to locate than six appeared months” and “it to me except alleged telephone the father for an parent going neither was to return postoffice, power company, check with the point.” signed an She also said she and a hotel there is where no evidence that Affidavit for resided, Publication of Notice. Fi- parent and either a doubtful Publi nally, July hearing after the and Notice, cation of far as this is so record Deprivation, order of Permanent Miss concerned, having inquiry there been no of Mattson had contact with the be- mother any persons anything or relatives or else August 10, 1974,wl).en tween 5 and the lat- respect In children’s father. here, pany. persons We list his efforts for informational Two of the three numbers of purposes only “diligent represented phone, and to show not in- listed the same and the quiry” “diligent inquiry,” address, but the look of and same and referred to a husband and though may “diligent inquiry” to show that even he have made wife. A bit of have' would petition filed, fact, the effort before the in was shown this had he looked in Polks 1974 way diligence City Directory page would it have been the kind of Salt Lake Suburban required strip away “diligent inquiry” from a mother and bit Such of would parental rights. directory father all He Hat- went have revealed the same on the home, page, listing Gandy, tie’s and was told that did she not know same aof Mrs. Clara Gloria, children, was, very person where the mother of the —the name of the he seek- was whatever, ing. but there is no evidence to indicate that be bothered to ask where Hattie’s own son, children, day, sug- the father of was. Then six months to the phone gests premature he looked in the book to see if he unwarranted effort Gandy, grand- place adoption could locate Clara the maternal these children out for be- Gandys listed, parents’ (which petition mother. He said “I found four fore the return Gandy.” resulting none of for), which were Mrs. is There she filed called default nothing judgment July 16, 1974, placement in the record to he indicate of ordered any listed, highly signifi- of placement those but it is of the children with “for D.F.S. wrecking adoptive cant that he said one was a corn- home.” a suitable weakening of because she “was in with the further trouble law.” addition to and following requested inquiry, the No reason therefor was such weakness none was said facts reflected volunteered. She she didn’t uncontradicted children, ridiculosity per- expect Hattie take record to enhance care paren- stripping parents manage, their but knew manently she she forever, gentle gone long. away didn’t think so rights, tal means she’d —which postoffice any Asked if the returned letters reader: Hattie, “no, why she sent to she said should is of the chil- Gandy, the mother Gloria they?” makes sense. —which dren, father, his Lawrence Pitts mother, Pitts, paternal grand- mother, Gandy, said the Gloria’s Clara Gandy is the maternal mother. Clara not con- Division Services did grandmother. any tact her at time. didn’t contact She July August. until She said Glo- *4 November, 1973, In October or Gloria phone, daughter by ria contacted her other saw to if see she would take care she, Clara, unsuccessfully tried to con- that awhile, the children for (Gloria) while she August was told that tact Hattie until gone. was did She not leave them at that to She she took children the Welfare. time with Hattie for some undisclosed rea- mail, phone no one her said contacted son, Brown, left them but with Wanda personally to was. or ask where Gloria friend, happy who to have was them and daugh- is no that the other There evidence keep got wanted to them until she back. said her ter ever contacted. She keep told to days, Gloria her them a few around daughter gave her address Gloria’s then take them Hattie. She went to Tampa, Florida, birthday.” April, was there with the chil- March or “after the kids’ following dren's July, father until the dur- court, length, and for at some Counsel ing which time she tried make contact manner, in a uncavalier elicited somewhat with the children. She called her mother effect she from Hattie an answer Hattie, several times and wrote to with no really Glo- know and was confused. didn’t mother, reply. got in She touch with her “Mom, I ria, sideline, on the volunteered through sister, her who answered my right after you It was called March. phone, April May, about near her birth- respond- birthday.” Counsel day. gave her sister She her address and up her and let by saying, you ed “Will shut kept asked how kids were. She writ- evincing some sort question?” answer Hattie, response. ing to with no she When at the saintly get effort of inverted back she came Hattie but was truth, judge backed The it would seem. told the latter had Then she saw moved. up him with an admonishment. her her mother who told the children were up adoption. Betty for She called Mattson im- only or effective The substantial who told her she couldn't see the children cross- peachment to the facts were as nor would she told where were. Clara, who grandma, examination juncture lawyer; At this hired a she she her as only confusion confessed my very
volunteered that: “I love
children
immaterial
to be a rather
appeared
what
really
much and
do
care
them.
displayed consider-
fact,
obviously
who
but
just
.
I
had to
town but was
leave
grand-
daughter and
her
affection for
able
I
planning to
think
send
them.
didn’t
children.
happen.
anything like this would
No one
presented by
proceedings
me
with
above
contacted
The facts abstracted
as men-
her
save
the Court.”
talked to
mother
are uncontroverted
She
only
presented
August,
or in
cross-
The state
July
end
1974. On
tioned above.
absent,
Tampa
relating
she said she went to
to time Gloria was
examination
facts
impressed
and what
aides of the
some
Division of
This writer
with a
conces-
did that was claimed to
sion
respondent,
Service
made
counsel for
none-
theless,
“diligent inquiry.”
constitute
to the
that:
effect
Respondent
help
agree
cannot
but
with
significant
the children’s
appellant’s
depriva-
contention that
grandmother,
Gandy,
resident,
Clara
awas
parental rights
tion of
is a drastic action
address,
knew Gloria’s
did
Gloria’s sis-
per-
through
which must be handled
significant
ter. More
is what the
did
State
procedures.
sonum
Children are not
not do.
It did
anything showing
not do
realty,
rights pertaining
to them
any diligent
inquiry
respect
proper
must be handled with care and
father,
children’s
so far
rec-
—and
however,
procedure. Appellant,
wants
ord
apparently
is concerned
did not even
this Court to believe that such is an ab-
inquire of his own mother where he was.
solute standard which
few ex-
has
Clara,
It did
phone
not contact
made
ceptions, if at all.
any
calls to
of what amounted to
two
language
We believe such
comes close to
Gandys
phone book,
did not bother
thinking
to the effect
a child
to examine
directory
presum-
the 1974
should not be taken from its
save
ably had all the names and addresses of all
convincing
clear and
evidence of inten-
area,
the residents in the Salt
give up parental nights, something
tion to
it did
directory
examine such
it failed to
proof beyond
almost akin to
a reasonable
find the name and address of Mrs. Clara
*5
respondent, having
doubt. The
made the
Gandy plainly printed
weekly
therein. The
quoted pronouncement
have difficul-
must
newspaper in
published
which it
notice of
ty, particularly
part
with that
about real-
hearing,
comparatively
had a
small circula-
ty,
Kimball,4
it cites Redwood
—when
tion in
County,
likely
Salt
may
support
chopping
parents’ rights,
the
off of
potential
not have had as wide a
for notifi-
quiet
realty.
since that was a suit to
title to
which,
this,
cation and
in a case
along
like
provokes
This
interesting language
some
with other
diligence,
claimed acts of
Supreme
of the U.
in
S.
Court Walker v.
diligence
seem not to constitute reasonable
City:5
Hutchinson
alerting someone,
in
nor
most “dili-
the
“It
is
gent”
notice,
knowledge
common
that
means of
mere
fairly
since it
is
newspaper publication rarely
knowledge
informs the
common
that
its circulation is
per
proceedings against
landowner of
largest
about one
cent of that of the
property,”
metropolitan
Utah,
many
and “In too
instances
daily paper published in
by publication
notice
is no
at all.”
reaching
where the chance
notice
here,
might
or interested
be
relatives who
quite apt
Certainly
language is
in
this
alerted,
is one
If the
hundred to one.
paper’s
this case
so
where a
circulation is
people
in
involved
had shown
case
per
small as to be about
of that
one
cent
compassion
as. much
parent-child
for
provided
paper
which would be
in a
whose
relationship,
speed
and
less
split-second
great
in
circulation is a hundred times as
procedure
in
designed to accommodate
circulation,
very
for a
few dollars
—all
baby
that
market
in this
flourishes
more.
black,
country,
gray,
whether
red or statu-
Respondent’s citing
Lloyd
v. Third
tory,
State,
facilities,
certainly
with its
differences,
Court,6
has
District
also
its
be-
could have used better and faster means
case,
tween the instant
since it
a divorce
is
finding
the whereabouts of this moth-
res extant
action with the so-called marital
er.
in
is quite
this state.
It
understandable
113,
(1967).
322,
20
(1972).
Utah 2d
asylum and arms that confort discipline.
administered the that the evidence this case
We believe hardly complete stranger almost a high of care equates with standard COMPANY, STEEL STATES MOUNTAIN par- diligence necessary seeking out Argonaut Company, Insurance *6 human ents when troubled waters brew. Plaintiffs, Any relationship should fracture of such only by be condoned clear evidence of the UTAH INDUSTRIAL COMMISSION OF highest quality. al., et Defendants. opinion are of the that the We hold No. 13872. proof the far reach- here does violence to Supreme Court Utah. ing permanent deprivation pa- order of May forever, rights, amounting to rental long, long time. ELLETT, MAUGHAN, TUCKETT and
JJ., concur. CROCKETT, (concurring sepa- Justice
rately) .
In majority view the fact that the opinion that the order aside, set objection
should be I voice no This, opens because I
thereto. assume way proceedings on the merits as
to what should be done these chil- requirement
dren. I realize that the of dil-
igent parent in such situations search for a