*1 79 appellant in the rights con- hás no whatever disposition conferred property. Appellant’s only predecessors in title ceased by the gress constitution pre- entry failed to make or file an actual in the acts preliminary all the when land office. possession Their did acquisition mere by law for scribed prevent rights territory from at- payment title, including taching to the school performed sections when land, price of the survey likewise, Appellant, was made. prerequi- these When the settler. by could not any succeed possessory rights with, settler complied sites were they which had, might have right because such vested acquired first time rights personal were and could not be as- could he which premises of in the signed or 2263, transferred then under-Section He deprived. subsequently Revised Statutes 1878. entry from entitled to a certificate ultimately to officers,and local land Judgment respondent. Costs affirmed. Until States. patent .of United entry, the acts payment and such CROCKETT, WADE,' HENRIOD and only priv- settler congress gave to the WORTHEN, JJ„ concur. in the lands pre-emption case ilege of usual man- sale offered for were purchase is, privilege
ner; preference to event in that them ”
others.’ Traver, 130 Buxton v. case 920, 296 P.2d 977 509, L.Ed. charac 232, 32 S.Ct. 9
U.S.
pre-emption
as an offer
statutes
terizes the
Fogle WILSON,
Viola
Plaintiff and
upon filing
conditioned
government,
Respondent,
performing
statement
declaratory
v.
these conditions
Unless
certain other acts.
WILSON,
Marcel Felix
Defendant and
acceptance
met, there is no
of the offer
are
Appellant.
settler.
rights
no
arise
favor
No. 8434.
Western
Co.
Rio Grande
Railroad
also
See
Supreme
Court
Utah.
868,
113, 110
Stringham,
Utah
P.
May 9, 1956.
issue,
appeal
on another
on
affirmed
44,
5,
Under only possible supra the conclu cited
cases present case is that drawn to be
sion
unnaturally, from the to be released bonds matrimony possible at the least economic disadvantage to himself.
Having in favor of the found issues plaintiff, her substantial- awarded ly property possessed all of the parties, (1) family home follows: at home furnishings and Bountiful. This $15,950, purchased had originally for $19,000 $20,000, a value $9,352.74; mortgage which there was (2) Lake which had been a home Salt $2,700 purchased value of (3) $5,000; uranium between $545.90; joint bank (4) stock valued $827.39; (5) a account in the sum tax refund check sum $161.10. *3 property just of In to the award addition Boyce McCullough, & McCullough, Salt recited, plaintiff awarded the sum the court City, appellant. Lake of until a total had of month paid, in to such award regard been and Duncan, City, LaMar Salt Lake for re- portion as a is intended stated: sum “Said spondent. property to the of of the allocation charge upon the estate of and shall abe CROCKETT, Justice. any that should to balance defendant as awarding From a decree the . pay- the prior he die to full remain should divorce, the appeals. defendant He does To the defendant the court ment thereof.” part of not attack the the decree granting car and other a 1946 Oldsmobile awarded divorce; contrary, on the it the seems to property. personal items very plain- designs his well. He asked suit upon the attack decree tiff to secure a divorce for the reason that defendant’s inequitable wholly in so and he was love with a certain Mrs. M. that it is and is marry manifests an intention to Notwithstanding unjust to that it wanted her. the punishment indispensable him impose that vindictive the divorce was fact love with desired, fallen in another plans, to have he seems because he had existing the circumstances woman, a fair and Wilson under making rather than here, correctly and think and we so. the equitable adjustment of places great parties. He the income of regard In to the defendant’s conten of this upon the statement
deal of reliance represents judgment that the an effort tion Foreman1 Foreman v. in the case court impose punishment upon of the court to that: the effect recognize “ him: We that there is no author * ** opinion court is of this punitive ity administering in our law for just settlement proper and that a judgment, and measures in a divorce that accomplished could be these difficulties except improper, to do so that would parties as place an effort may, practical court as a matter in and they position in the nearly possible as variably does, loyalty consider relative * * * al- court should in were disloyalty parties or marriage their sum of a reasonable Foreman low Mrs. vows, guilt and their relative or innocence length of such month for money per causing breakup marriage. It will enable believes time as seldom, recognized perhaps is to be that it her former readjust her life to her to never, any wholly guilty that there or self-support.” position of wholly party innocent to a divorce action. of that case the facts Reference aware, course, was trial court that can be uni rule no firm that emphasizes people adjusted when are well happy cases, divorce all formly applied marriage, just one them does out of a upon the basis of be determined must each sky clear blue fall in love with someone In the Fore situation.2 fact immediate else; usually and that when this occurs it is past age, middle parties were case man marriage an that the indication has disin previously and each married had been both tegrated from other causes. marriage property. had substantial It had lasted for appeared ill-advised. it plainly When pur was the court did matrimony case days. poses In destroyed only 68 to undo was proper solution living together the extent that further state place practicable intolerable, as it insofar was in accordance with error possible nearly duty as prerogative plain grant court’s *4 marriage. the to prior In they doing were tiff a divorce.3 so it is position desirable rejected court perpetuation trial the of the case to avoid instant difficulties the that In Mrs. to manifestly unfair brought marriage. failure to the as proposal ob- the 144, Hendricks, Utah, 72, 111 P.2d 154. 1. 176 3. Hendricks v. Utah P.2d 366. 255, Pinion, 67 P.2d 92 Utah v. 2. Pinion 265. health; has poor is that she is in that she animosities to minimize ject be desired to care; been under that bury dead” doctor’s she is its past dead “let the and to presently capable and no working court’s of has possible. as that insofar special training or skill with which to main- provide to endeavor is to responsibility experience only tain herself. Her eco- work adjustment of their equitable and just prior was as a store clerk parties marriage. to her can the that so resources nomic happy and use- lives on their reconstruct The fact the union had been necessary for doing it is so In basis. ful blessed children with has of consider- consider, in addition to the to court the importance able parties, and to the concern parties, innocence guilt or relative particularly plaintiff. to the It would serve the attendant facts of all appraisal an purpose parties no useful to stigmatize the of the duration and circumstances: by detailing herein the matters of accusa- parties; their so- of the marriage; ages tion and recrimination between them. It is their living; positions and standards cial apparent that the trial court did not believe children; relative health; considerations against the accusations plaintiff, and possess they money and findings that he based his and decree capabilities and their acquired; how it was which clearly fact seems to underlie the potential present and their training and immediate cause of the divorce: incomes.4 defendant had fallen in love with Mrs. M. 1955, 6, trial, September time of At the free marry wanted be so he could years; married parties had been significant just her. It is about the the defendant years old and 45was (March, 1955) time defendant made this marriage the of the period During 39. wife, declaration h'is this Mrs. M. ob- degrees of financial varying had had divorce; tained a that she living in a from as earned The defendant had success. in the home rental unit of the defendant’s month, up a month $300 little $80 father, and the defendant was contributing always lived within parties had yet the support paying her her buy- rent and prop- had accumulated income their food; ing her meanwhile the de- is a The defendant above. erty listed support fendant ceased contribute to the stylist. and hair beauty culturist trained she so that had to subsist on capacity earning found trial they previously what accumulated. In per month. in excess many instances divorce where In per month from addition, receives $173 he spent years prime of the has disability woman Government States United marriage then faces its in a break- her life Plaintiff’s evidence hearing. to his relating MacDonald, 573, 120 Utah v. Donald to be con- factors lists 4. For other supra; 1066, 1071. Pinion, P.2d Mac- Pinion see sidered *5 n up, skill, month, special training- plaintiff in im obviously without or not prospects paired enough health, support, and with dimmed property for her and the companion marriage proceeded of life above set favorable He seems have out. ship, impose fit theory have seen on the courts permanent receives, her, the burden erring prudently managed by of if husband as dependency frugality alimony. Apprehensions during of her her married indi- life ex do, provide well she may circumstances were cates well could her under such Mac pressed degree security sup- v. with a of case of MacDonald reasonable if concurring plemented by Henriod in a this amount. The defendant by Donald Justice relatively would free his opinion: thus be left to use income to discharge responsibili- his future part appellant’s “Here the better unduly being ties without main- burdened in husband, to her devoted life has been time, taining his wife at the same former atmosphere arrives, in an she now hand, and on this provide the other would incapacity misfortune, bourn of at a protection the plaintiff maximum future, current where with an uncertain practically for her from re- available the hus- from monthly contributions opportunity sources at and afford her hand insulating against in aid band could readjust living. conditions of to new need might appellant well day this when most.” assistance true, It contends, as defendant similarly appre- here was court The trial proceeding equitable divorce but Wilson of Mrs. welfare of the hensive that it is prerogative within the of this court that because believed appears to have to review the evidence and to substitute its perma- an award attitudes of judgment for that of the trial under than practicable be less alimony would nent proper circumstances.6 The more recent expressed the He solution. some other pronouncements court, of this policy car- the defendant requiring thought adhere, to which we are to the effect that alimony would permanent ry burden the trial judge has considerable latitude of bitterness,” and unbearable “almost lead to discretion such matters and that judg his af- adjustment their an sought to make ment changed should lightly, and in- be avoided. could this fairs so fact, all, not at unless it works such a mani capaci- injustice earning inequity defendant’s fest or Although the to indicate a produce would abuse substan- clear of discretion.7 plus pension, We are ty, not dis month, posed with disposition court awarded interfere tially over $400 MacDonald, 4 above. 7.See MacDonald v. 5. footnote footnote See above; Lawlor, Utah, Lawlor v. 240 P. Hendricks, 553, 63 91 Utah Hendricks 6. 2d 271. 277. P.2d trial court judgment de- entered However, looking at the property. equity; evidences more sentiment than we believe indulgence, proper cree with all fact, I see considerable design the vindictiveness it does conform decree. the time of the avowedly trying to fashion judge was trial years marriage was six senior— defendant’s upon defendant imposing obligation an 30, never had a alimony she was he 24. She had for a pay a amount of modest *6 steady job in would her life. The record termina- period of time and a definite with managed indicate and she testifies that she payment sight. The of $5,000 tion date helped defendant’s income and to accumu- run per month for at the rate would $50 paid property which for. years. late the his work eight or It 100 months and one-third opinion that the decree should be is our fact, grate- In most defendant should be payments provide that modified to establishing him in a ful that she did assist only should continue until month only it all taken substantial estate to have plaintiff’s remarriage, or until the sum on her. plus additional and bestowed n $2,400 paid, In is whichever occurs first. died, plaintiff he would have re- Had respects judgment all other is affirmed. ceived, heir, $5,000 sole less than was costs. to bear their own permitted help in She was awarded her.
determining what award should be made. McDonough, hearing trial court wade, j., At the close of the j., c. said to counsel: concur. may prop-
“The have all Court: She WORTHEN, (concurring and evidence, except the check in erty Justice $5,000.00 payable a month for dissenting). $50.00 payments hundred for the next one one agree I with CROCKETT Mr. Justice months, may or she choose be- hundred properly awarded a de- that the trial court $10,- and have tween the two homes plaintiff. I likewise cree of divorce month, dollars a at hundred 000.00 trial court of the agree that decree hundred payable in one installments. proper indulgence at all cannot looked with make a choice. Please opinion I am of the be sustained. $10,000.00 injustice and How is the such a manifest “Mr. Gustin: decree works of dis- ? payable evidence a clear abuse inequity as to
cretion. aAt hundred dollars a “The Court: hundred for one consecutive month However, agree that the I am unable n impressed By I am with months. provided for decree as minor revision better manager that' she fact the abuse opinion has cured majority in the he is. than original decree. of discretion manifest choice plaintiff give up What did the She has Duncan: “Mr. mar- except property riage? this evidence would between all of warrant evidence, up conclusion that gave thousand she insecurity check in five security. part Her status as a dollars. time clerk replaced by was happy that of a wife for That right. That’s “The Court: years. nearly 15 one choice. majority opinion justifies larger choice Or she has a Duncan: “Mr. than usual award plaintiff’s because lack thou- and ten the two homes between special training or skill. But defendant sand dollars. is not be charged with her lack of skill or Payable at one hundred “The Court: training. many Defendant has worked at hundred con- for one dollars a month jobs; his life has been one of long hours secutive months. and hard work. training His as a beauti- May just a I have “Mr. Duncan: cian taken under the G. I. Bill of (A tak- short recess was moment?” Rights.
en.) Can award made of all she I am advised that “Mr. Duncan: plus $5,000 be justified in order property and rather take all would shall not be worse off because of the mar- $5,000.00 month. $50.00 riage? The record strongly would *7 suggest * * plaintiff that would have been unable to ac- right All *.”
“The Court: cumulate anything had she remained unmar- re- evidence for The check in $545.90 ried. by go to defend- to the court didn’t ferred plaintiff given a yea substantial — pay and at- That to court costs ant. went large —windfall. torneys’ fees. The record discloses following prop- by referred this court to The rules oft erty plaintiff awarded to with indicated val- determining proper applied settle- ues : property rights and the award ment (1) The Bountiful home—net value alimony disregarded to have been seem mortgage over approximately $10,000. implied have never before in this case. We cruelty of a husband who falls in (2) City Salt Lake home (clear) woman, and another which love with $4,000 $5,000. value duration, justifies stripping him of all short (3) plaintiff Furniture which testi- by accumulated has been efforts fied as having $4,000. a value of years period giving her over $5,000 additional. Defendant was bonus awarded: “I (1) 1946 Oldsmobile feel like valued whatever Mark and $95. I have accumulated, we have accumulat- tools, carpenter val- (2) Defendant’s together, like, ited any and I feel under ue not indicated. circumstance, other Mark would be en- Beauty shop equipment (3) $300.— titled to it but not to take to some other per month on ac- Defendant receives $173 woman, no.” disability sus- count of service connected nothing There is in the decree restrain by in World War tained defendant while plaintiff $23,000 $24,000 taking from Two. to another awarded man. plaintiff court awarded $19,000, plus valued at between HENRIOD, J., concurs the conclusion $5,000, part as a of the alloca- an award of WORTHEN, by reached J. property. tion of observed, gave As the 'court heretofore plaintiff. giv- Had the court options
two option giving
en defendant $10,000, defendant of the homes and
one plaintiff the give
would have able P.2d City selling Lake home Salt home, pay $10,000. Plaintiff Bountiful SALT LAKE TRANSPORTATION COM- would rather live testified that she PANY, corporation, Plaintiff, City if it wasn’t next to his Lake home Salt appellant’s brief and folks. It was stated REVIEW INDUSTRI- OF the BOARD OF by respondent has UTAH, disputed DEPART- COMMISSION OF AL SECURITY, MENT OF EMPLOYMENT sold Bountiful home. Defendant. opinion equity I that if is to be am of No. 8442. parties, defendant should done between Supreme of Utah. Court City home in given the Salt Lake either be May 4, 1956. entirely payment of the cash
'or be relieved $5,000. equipment beauty shop is valued at place has no it. to use defendant but *8 basement of Bounti- used It was (cid:127) ,
ful home. . . . that under other indicated
Even awarded all the she should
conditions - as follows: testified property —she