Stroud v. Stroud

738 P.2d 649, 60 Utah Adv. Rep. 48, 1987 Utah App. LEXIS 477
CourtCourt of Appeals of Utah
DecidedJune 17, 1987
Docket860049-CA
StatusPublished
Cited by16 cases

This text of 738 P.2d 649 (Stroud v. Stroud) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stroud v. Stroud, 738 P.2d 649, 60 Utah Adv. Rep. 48, 1987 Utah App. LEXIS 477 (Utah Ct. App. 1987).

Opinions

OPINION

BENCH, Judge:

Defendant appeals an order of the Third District Court refusing to stay the accrual of interest on a judgment for delinquent child support payments. We affirm.

Plaintiff Karen W. Stroud and defendant James M. Stroud were divorced on June 20, 1972. The decree granted plaintiff care, custody, and control of the couple’s two minor children. The decree also ordered defendant to pay child support of $75.00 per child per month. On September 20, 1983, the triál court issued an order to show cause why judgment should not be entered against defendant for past due child support. At a hearing on March 6, 1984, the trial court found in favor of plaintiff and ordered defendant to pay her $18,-815.00 in principal and interest plus attorney fees and court costs, with interest on the unpaid balance to accrue at 12% per annum until paid. The court issued its findings, conclusions, and order on March 15, 1984.

Defendant filed a motion to amend the judgment on June 8, 1984. Defendant asked the court to stay execution of the judgment provided defendant make payments of $300.00 per month.1 Defendant also requested the court to prohibit the accrual of interest on the unpaid judgment provided he remain current on his payments. In an order issued July 19, 1984, the court granted defendant’s motion to stay execution of the judgment provided payments were made. However, the court concluded, under Utah Code Ann. § 15-1-4 (1986), it could not waive the interest on a judgment. Defendant filed a notice of appeal on July 31, 1984.

On appeal, defendant contends Utah Code Ann. § 30-3-5(1) (1979) grants a trial [650]*650court the authority to suspend interest payments when such action is determined to be equitable. Therefore, argues defendant, the trial court erred in ruling it had no power to stay the accrual of interest.

Section 15-1-4 provides that, unless otherwise specified by contract, “judgments shall bear interest at the rate of 12% per annum.” (Emphasis added.) Defendant suggests where equity requires, this statute may be ignored under section 30-3-5(1) (1979) which states, “When a decree of divorce is rendered, the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable....”2 Defendant cites Harmon v. Harmon, 26 Utah 2d 436, 491 P.2d 231 (1971), and Pope v. Pope, 589 P.2d 752 (Utah 1978), in support of his argument.

In Harmon, the Utah Supreme Court upheld a trial court’s stay of execution on a judgment for support arrearages using the following rationale:

In order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers. To accept the plaintiffs contention that an adjudged arrear-age is tantamount to a judgment in law, would in the long run tend to impair rather than to enhance the abilities of both the plaintiff and the court to accomplish the desired objective. Such a judgment at law does not have the valuable and useful attribute which allows its enforcement by contempt measures. For the foregoing reasons decrees and orders in divorce proceedings are of a different and higher character than judgments in suits of law; and by their nature are better suited to the purpose of protecting the interests and welfare of children.... [WJhere it appears to be in the furtherance of the court’s responsibility of safeguarding the welfare of children, the District Court may upon conditions which he deems appropriate and consistent with that objective, make an order such as the one here under attack, staying the issuance of execution.

Harmon, 491 P.2d at 232, 233. In the instant case, the trial court appropriately exercised its discretion and stayed execution of the judgment.

In Pope, the trial court, in dividing the marital property, ordered defendant to pay plaintiff $24,984.00. Apparently in order to induce defendant to pay the money within six months, the court ordered that if the amount remained unpaid after the six month period, then interest would increase from the then statutory rate of eight percent to ten percent. The Utah Supreme Court affirmed the trial court’s order and held, “Sec. 15-1-4, which requires ... judgments to bear interest at the rate of eight percent per year, does not preclude a District Court, under Sec. 30-3-5 from imposing an interest rate of more than eight percent where, under the circumstances, that award is reasonable and equitable.” 589 P.2d at 754.

Defendant claims the breadth of discretion exercised by the trial court in Harmon and Pope and affirmed by the Supreme Court is similar to the discretion the trial court in this case claimed it did not have. Defendant argues that, if, under Pope, the trial court has the discretion to raise the interest rate on a judgment in a divorce decree, the court also has the discretion to stay the accrual of interest on the judgment.

This approach is contrary to law. Section 15-1-4 states judgments “shall” bear the statutory rate of interest. According to the Utah Supreme Court, the meaning of the word shall is usually or ordinarily presumed to be mandatory. Herr v. Salt Lake County, 525 P.2d 728 (Utah 1974); State v. Zeimer, 10 Utah 2d 45, 347 P.2d 1111 (1960). Section 15-1-4 is a very specific statute while section 30-3-5(1) is much more general. “When two statutory provisions appear to conflict, the more specific provision will govern over the more general [651]*651provision.” Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 216 (Utah 1984).

Furthermore, when principles of equity confront rules of law, “equity follows the law.” McDermott v. McDermott, 129 Ariz. 76, 628 P.2d 959, 960 (App.1981). The Court of Appeals of Arizona states, “... courts of equity are as much bound by plain and positive provisions of statute as are courts of law and where rights are clearly established and defined by statute, equity has no power to change or upset such rights.” Stokes v. Stokes, 143 Ariz. 590, 694 P.2d 1204, 1208 (App.1984).

The Utah Supreme Court has held one who obtains a judgment for unpaid maintenance and support is entitled to interest thereon until paid. In Scott v. Scott, 19 Utah 2d 267, 430 P.2d 580 (1967), the trial court awarded a judgment for unpaid alimony under a Nevada divorce decree.

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Bluebook (online)
738 P.2d 649, 60 Utah Adv. Rep. 48, 1987 Utah App. LEXIS 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stroud-v-stroud-utahctapp-1987.