*1 giving аscertain the facts rise to an stances the injury, Coop was in no better position requirement know, that the defendant have than the Stahelis to or to be able to responsibility either exclusive control or ascertain, the cause of the fire or to control agent essentially the causative has the same possible several of the causes of the fire. effect. Finally, Stahelis failed to make clearly record this case estab out a specific case based on the acts of Coop lishes that the did not have “the right negligence alleged in the complaint, irre power of control.” The trial court’s find spective of a presumption, because of the Holt, ings unchallenged are the Stаhel- absence of proof proximate of the cause of is, assignors and the had lawful Stahelis’ proximate fire. When the cause of an Indeed, access to potato pit. injury speculation, is left to the claim fails “Plaintiffs, court specifically found that as a matter of law. Sumsion v. Streator- Defendant, agents well as the of the had Smith, Inc., 44, 103 Utah pit unlimited access to the said ei potato through ther tempo doors on the end respondent. Affirmed. Costs to rarily by through leased the Defendant or owner, the doors on the end retained HALL, C.J., HOWE, JJ., and OAKS and neither of which Further was locked.” concur. more, it is not even established whether the fire part facility started in that of the re DURHAM, J., participate does not herein. tained and сontrolled Holt or in that Coop. leased
We readily concede that the record con-
tains evidence Coop’s of carelessness on the
part, but there is also evidence of the Sta- and, indeed,
helis’ negligence possibility negligence on the part parties. of third
The retention smudge pot of the oil-filled burlap bags pit an area of the acces- WARREN, Barbara J. through sible both Holt’s side and the Appellant, side, Coop’s as well as the existence of intruders in the vicinity sought who shelter WARREN, warehouse, possibility raises the Robert L. Defendant Respondent. of the parties may above-mentioned have negligently started the fire. Further- No. 17514. more, the fire could have been caused aby Supreme Court of Utah. lighted cigarette grass thrown on the near the wood structure or by spontaneous com- Sept. 1982. bustion, as the suggested. trial court right to control these events and conditions was not exclusively pri- or even
marily Indeed, the duty Coop.
lack of adequate precautions control and result, extent,
was a to some of the emer-
gency arising situation from the need to surplus grain
store that which the beyond
Coop’s facilities could accommodate.
sum, the trial properly court held that a
presumption negligence did not arise be-
cause of the absence of the Coop’s exclusive
control of the premises. Under the circum- *2 Proctor, Parken, H.
John D. Paul Salt appellant. City, Lake City, Lake Jonge, Nicolaas de Salt respondent. defendant and HALL, Justice: Chief action, appeals In this divorce of marital the trial court’s division from liabilities, alimony award and assets and its attorney her refusal to award its fees. in 1952 in
Plaintiff married defendant Antonio, Texas, months after the four San her with an inheri- of her father left death $200,000. Defend- tance of at Rice ant, engineering studying who was part-time University, worked marriage, while of their the first living most of the ex- division of the marital The trial plaintiff paid for court valued the penses from inheritance furniture and money. defendant received his household effeсts at a total of based time, on an itemized list of engineering degree. Since that he estimated values com- company piled by has worked full-time for a now defendant and admitted as evi- E-Systems, contributing known as his in- dence. Plaintiff claims that defendant’s es- *3 support family. come to of the In they improp- addition timates are inflated and that income, plaintiff expended erly replacement to this substan- reflect cost rather than tial sums from the principal and income of actual market value. during
her inheritance the money suggests Plaintiff no alternative criteria In the dividing property parties, by might the which the trial court have evalu- plaintiff the trial court awarded to all of property. ated the household Plaintiff did father, рroperty the inherited from her con- not furnish a equivalent list of estimates fund, sisting of a trust appraisal 490 shares of Na- that of defendant or other tional Corporation property. provided Bancshares of Texas Plaintiff one exhib- (National stock, Bancshares) jewelry showing and it the sources purchase prices and household furnishings. furniture. Plaintiff also receivеd of some the list is equity parties’ one-half of the in the house complete far from and contains no indica- and most of the personal property of the tion of current values. Plaintiff was direct- parties acquired during the in- marriage, ed in the order in an earlier furs, cluding jewelry, a Saab automobile order to supply concerning information such nearly valuеs, all of the furnishings. present household but failed to do so. Defendant received one-half of the equity Apart from defendant’s valuation of the house, 1,624.32 in the shares of E-Systems property, only evidence before the court stock acquired employee option under as to value household effects ownership plans, and stock 1 unit of a cor- consisted of a nonitemized appraisal made porate income fund and unnamed other request dealer, at defendant’s antique Pierce, managed stocks Merrill Lynch, Tom Olsen. Olsen estimated value of Smith, (Merrill Fenner Lynch), & Inc. an the contents of the home at a minimum of employee pension, savings retirement $75 $50,000on an immediate sale basis and at a bonds, $2,700 note, a promissory a $500 $100,000. Thus, replacement retail value of personal property account receivable and specific evidence on the boat, including tools, a Jeep, various $51,484 issue of value supports gun collection and other items related to his the trial adopted by court. hunting fishing. hobbies of The trial court’s jewelry valuation of the The trial cоurt pay ordered and furs awarded to accords with $2,604 debts incurred on 9 credit cards and appraisals by high- written of these items year income taxes for the for a ly experienced jeweler furrier and whose $10,633. total of The court ordered defend- qualifications plaintiff does not dispute. $1,003 ant to pay past mortgage pay- Each of the preparеd estimates was in ac- ments, $2,000 to Merrill Lynch and appraisal practices cordance with standard 1979income taxes. The court also awarded profession appraiser of the and with- per month for a 4- alimony knowledge purpose out of the year period right petition and the praisal. appraisals both were extension of at alimony thе end of that made more than two in advance of period. appraisers, the trial date. Each of the tes- I. Property Distribution of trial, tifying at indicated that the items might significant-
Plaintiff claims that the trial court have increased appraised intervening overvalued the property ly awarded to her in value Thus, property years. undervalued the awarded to de the trial court did not err fendant and that valuing jewelry this resulted in an unfair and furs in accordance in accordance with the provided, Valued evidence appraisals professional
with the discussed above and with the trial court’s sole evidence before which constituted the findings, property plain- distributed to value. it on the issue of current tiff carried a total value of while court the trial alleges received defendant amount- property most of the awarded to defendant unfairly $133,988in inequi- ed to value. We find no stocks, assets, such income-producing ty or abuse of discretion in the court’s allo- awarded to her property that most of the cation. in value. Even unlikely to increase
was II. Division of Liabilities consti arguendо, that securities assuming, contends tangible asset than tute a more desirable unfairly by requiring court burdened her val property equivalent personal real or pay consisting her to in liabilities ue, in the trial court’s injustice we find no chiefly unpaid card balances. The trust received allocation *4 Plaintiff in her not testimony did attribute as of that allocation con by plaintiff any expenditures of the credit card debts to stocks, securities and government sisted of on of defendant. made behalf plaintiff, note to which promissory one rep she claims that some of the liabilities brief, approxi value of assigns a total made on expenditures resent behalf re $97,500. plaintiff mately children, implying that defendant should carrying stock ceived National Bancshares expenditures. for such responsibility bear $13,720 on the first approximately value of no evidence at trial trial, of a according testimony to the day of the credit card percentage show what Defendant’s E- Lynch Merrill stockbroker. expendi- attributed to might liabilities be hand, stocks, held a Systems on the other children, specifically tures in behаlf of the $74,313, according of approximately value expenditures. two such identifying only quotations Journal stock to Wall Street 18 parties All of the children of the are over in defendant’s day reported the same as living was at home at age and none stocks, remaining testimony. Defendant’s time of trial. From the evidence excluding corporate one unit of inсome might properly the trial court presented, fund, total value of stipulated carried a had incurred plaintiff have concluded that Thus, a total of received $309. principally liabilities for her the credit card $111,220 securities, while approximately that she should bear re- own benefit and amounted to those received defendant sponsibility for such liabilities. $74,622 value. approximately unjust Plaintiff also labels pay portion order that she that the tri trial court’s complains Plaintiff also joint liability. tax 1979 pension undervalued defendant’s al court income tax of the total federal to the fund its calculated by assigning fund $13,917 penal plus interest fu was value rather than its ultimate present amount, defendant assumed ties. Of this eli presently Defendant is not ture value. Plaintiff, $11,821. who responsibility gible pension payments to receive own 1979 income acknowledges that her why no reason his inter plaintiff has shown of the total income constituted one-sixth be assessed at its est in the fund should $2,604, ap pay was ordered to parties, than at its future value rather projected total tax. It is one-sixth of the proximately Moreоver, par worth. present actual how the trial court’s division difficult to see agreement, stipulated, ties in their improved liabilities could have been of tax $20;247 to the valuation used upon. used an unrealis court. Because the court compute interest rate to tically low 8% Alimony III. $20,247 present pension, value of the likelihood, that the trial court’s is, high rather Plaintiff clаims in all too in both is insufficient alimony award low an estimation of value. than too alleges amount and duration. work on her degree baccalaureate and to income, including that her monthly job, find a but that had not done awarded the tri- $400-per-month alimony so. court, al amounts to and that Although this may weigh Court the evi-
this income her to maintain permit does not dence and judgment substitute its for that living the standard of she has actions, the trial court in divorce we will According pre- become accustomed. lightly not do so or because of a mere signed by parties, plain- trial stipulation judgment difference in from that of the tiff receives income approximately $800 trial court.1 Our examination of the record trust and from her inherited discloses no reason for modification of that Thus, plaintiff’s dividends each month. court’s alimony award. income, present monthly including alimony, Attorney IY. Fees totals rather than the Plaintiff offered no evidence at trial plaintiff. alleged by nature any show the or amount of attor present Although plaintiff’s income ney litigating present fees incurred in pears adequate, plaintiff bе more than action or need for court-ordered assist free supplement by accepting this income payment ance in the of such fees. Utah part-time full-time or employment. None clearly requires presentation law of such plaintiff’s home, children now lives at support evidence in order to attorney fee responsi- testified to no other award.2 The trial court properly therefore might prevent bilities which her from seek- *5 plaintiff’s request denied for such fees. ing paid employment. complains that she previous experience has no work Affirmed.
and that she suffers a “medical disability of STEWART, HOWE, JJ., However, OAKS con-
the hands.” no evidence in the cur. record shows to be unemployable. Although plaintiff carрal had tunnel release DURHAM, (dissenting): Justice 1980, in surgery early she no tes- I dissent from the majority opinion be- timony or other evidence to show im- any cause I believe the trial court abused its pairment of the use of her following hands first, in respects: discretion in the surgery.
that
Nor does the record disclose
manner
computing alimony
paid
of
to be
any
might pre-
other circumstance which
second,
appellant
failing
provide
in
a
vent
from acquiring employable
$146,-
appellant
credit to
for the more than
4-year
skills. The
minimum duration of
marriage
000 she contributed to the
from
plaintiff’s
award,
alimony
conjunction
separate
acquired prior
the
trust fund she
plaintiff’s right
with
to petition for exten-
marriage.
to the
sion
alimony payments,
ample
of
ensures
court,
setting alimony,
The trial
obvi-
time
the acquisition
prior
for
of such skills
ously
respective
took into consideration the
alimony.
to the termination of
parties.
incomes of the
appears
stipu-
to blame defendant
for the fact
lation and
findings
that she obtained no
the court’s
of fact estab-
specific employment
marriage
apрellant’s
skills
the
of
lish
estimated income from her
parties.
per
when cross-examined on this sub-
trust at a 1980 level of
or $800
counsel,
ject
plaintiff’s
pretrial stipulation
defendant
testi- month.
In
fied that before the
of
findings
birth
children to the
and the court’s
show a six-month
parties he encouraged plaintiff
to finish
income
from “dividends ...
from
Turner, Utah,
(1982);
Co.,
156,
1. Turner v.
assets if
each party depart with at least what
they brought into the Utah, STATE Respondent, RICCI,
Richard A. Defendant Appellant.
No. 18165.
Supreme Court Utah.
Sept. 1982.