Despain v. Despain

610 P.2d 1303
CourtUtah Supreme Court
DecidedApril 11, 1980
Docket16387
StatusPublished
Cited by19 cases

This text of 610 P.2d 1303 (Despain v. Despain) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Despain v. Despain, 610 P.2d 1303 (Utah 1980).

Opinions

HALL, Justice:

Defendant Robert Despain takes this appeal from two post-divorce orders of the district court: the first denying his motion to condition the payment of child support upon plaintiff’s compliance with his right of visitation, and the second ordering him to provide to plaintiff Joyce M. Despain an accounting of a certain trust set up by the parties, and to pay over to plaintiff the income therefrom and an amount equal to one-half the value of the res of said trust as of the termination date thereof.

In the original divorce proceeding, the parties avoided a trial by entering into an agreement entitled “Stipulation and Property Settlement Agreement” which was duly presented to, and accepted by, the court and incorporated into the decree of divorce dated November 24,1976. The provisions of that agreement, where relevant here, may be summarized as follows. Plaintiff received the care, custody, and control of two children still in minority, Susan Des-pain and Eric Despain, subject to reasonable visitation rights in the defendant, which visitation rights were subjected to certain mínimums not important here. Defendant agreed to pay to plaintiff $1,500 per month: $500 as alimony, and $500 for the support of each of the two minor children until they reach the age of majority, and for so long thereafter as they continued to reside with plaintiff and were enrolled as full-time students. Payment for books and tuition for the children, stated the agreement, had “already been made” in the form of a trust agreement entered into by the parties July 1, 1967, establishing certain property1 as the trust res, and splitting the income thereof into three separate funds, each of [1305]*1305which was to pay the educational expenses of the parties’ three children, respectively.2 By its terms, the trust terminated on June 30, 1978, at which time the income remaining in the three funds was to be paid to the respective beneficiaries, the res reverting to the parents as grantors, or the survivor thereof. The agreement further provided, at paragraph 10, that in exchange for the payment of $75,000, plaintiff would relinquish all claim of right in R & D Investment Company, a limited partnership in which defendant was involved, all claim which she might have against defendant’s pension and profit sharing plan, “as well as relinquishing any and all other claims against the defendant so as to constitute a complete separation and division of the marital estate between the plaintiff and defendant.”

On June 12,1978, defendant, by affidavit, declared to the court that plaintiff was not complying with the terms of the decree of divorce regarding reasonable visitation rights, in that she was allegedly interfering with his rights of visitation with Eric Des-pain. The court issued a show-cause order thereon, and following a hearing on the matter, ordered that an evaluation report be prepared. Pending the results thereof, on August 10, 1978, defendant moved the court to modify the decree of divorce by terminating all right to child support payments in plaintiff.

The questions raised by these motions came before the trial court on December 28, 1978. Based on the evidence presented therein, and the recommendations of the custody evaluation report,3 the court denied defendant’s motion, which had been modified to request that the court link the obligation of child support payments to the granting of child visitation rights by plaintiff. The court then ordered that the visits between defendant and Eric continue, under supervision of a therapist, according to the recommendations of the custody evaluation report.

Thereafter, on February 7, 1979, plaintiff filed a motion for modification of the decree of divorce, pointing out that the trust agreement had terminated, and asking that defendant be ordered to pay schooling expenses for the three children, and that defendant pay to her one-half the trust res. The trial court denied payment of school expenses for the oldest child, but granted the remainder of plaintiff’s motion.

In appealing from the December 28th trial court ruling denying defendant’s motion regarding child support payments and the visitation rights, defendant asks us to overrule the trial court’s disposition of the present custody and visitation difficulties. Defendant seeks to impose a system whereby his obligation to provide child support would be conditioned upon plaintiff’s compliance with his legally-prescribed minimal rights of visitation. We decline to hon- or this request.

Under Utah law, a divorce court sits as a court in equity so far as child custody, support payments, and the like are concerned.4 It likewise retains continuing jurisdiction over the parties, and power to make equitable redistribution or other modification of the original decree as equity might dictate.5 In both the formulation of the original decree and any modifications thereof, the trial court is vested with broad [1306]*1306discretionary powers, which may be disturbed by an appellate court only in the presence of clear abuse thereof.6

In the present case, the trial court, in acting on defendant’s motion for modification of the decree of divorce, took great pains to arrive at an equitable solution to the difficulties giving rise to the motion. A study was commissioned on the court’s own motion, which took more than five months to complete. The recommendations thereof were thoroughly examined and adopted by the trial court. Upsetting the conclusion so meticulously arrived at in favor of something so mechanical and factious as defendant’s money-for-visits solution would be extremely ill-advised.7

Defendants cites a handful of jurisdictions which have approved the system proposed by defendant under similar circumstances. It is noteworthy that, in each of these decisions, the proposed system was devised and implemented by the trial court itself, and merely approved by the appellate court. In none of them was the system implemented by the appellate court in favor of an alternative solution imposed by the trial court.

Defendant’s only point on appeal from the trial court’s order issued pursuant to plaintiff’s February 7th motion is that the trial court committed error in ordering an accounting of the trust property, and awarding to plaintiff a one-half interest in the trust res. Under defendant’s argument, plaintiff contracted away all rights to the trust res pursuant to paragraph 10 of the separation agreement and property settlement forged by the parties. In exchange for the $75,000 payment from defendant, asserts defendant, plaintiff relinquished “any and all other claims against the defendant.” By defendant’s view, the trial court, upon adopting the parties’ agreement as part of the decree of divorce, became bound by its terms and may not now modify such terms. We agree.

This issue was most recently before the Court in Land v. Land8 wherein we observed that the outright abrogation of the provisions of a property settlement agreement is to be resorted to with great reluctance and only for compelling reasons.9

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Cite This Page — Counsel Stack

Bluebook (online)
610 P.2d 1303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/despain-v-despain-utah-1980.