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Show MONDAY, AUGUST 10, 1970 SUPREME COURT DECISIONS THE DAILY RECORD PAGE (Continued from Page 2) IN THE SUPREME COURT OF THE STATE OF UTAH contract, namely, that as a condition of keeping possession, the buyers would have to pay $150, instead of $100, per month in the future, would have to pay an unspecified amount of costs and expenses and $475 attorney's fees set by the sellers themselves. All this, even before any litigation was instituted. It is equally obvious that such a notice could not possibly convert buyers into tenants at will, since it required the buyers; to do more than that for which the contract called, including unascertained costs and predetermined attorney's fees before suit. Besides the ailments of the notice, it had the infirmity of improper service upon one of the buyers, because of failure to mail a copy to him. This defective notice was followed by another notice on March 25, 1968, under the unlawful detainer act (Title Utah Code Annotated 1953), based on the premise that the buyers were tenants at will, "pursuant to notice served on you upon the 12th day of March, 1968. " This latter notice also was defective as being based on an obvious fallacy. 78-36- -3, The above takes us back to the terms of the contract of July 1, 1954, and the rights of the parties thereunder, and to the complaint filed by the plaintiffs on April 15, 1968. The allegations of the complaint with respect to the two notices mentioned above, the reasonable rental value of the property and treble damages, prove to be surplusage and gratuities in. light of what we have said above, and the relief prayed on account thereof consequently is without merit. What is left before us is a complaint for restitution of the premises for failure to make the payments as agreed; for forfeiture of payments made, as liquidated damages, plus costs and a reasonable attorney's lee, claimed to be $500 by the plaintiffs. pared to the purchase price; 5) the trial court entered a written memorandum decision on July 2, 19q9. which was filed, stating the default was more or less the result of a mutual misunderstanding, that it would be unconscionable to declare a forfeiture, that the amount due on the contract was $4, 133, but because of disputes, no interest was allowable, that plaintiffs were not entitled to treble damages, that $500 was a reasonable attorney's fee, that the plaintiffs owed $3,005 on the mortgage, and that defendants should pay the plaintiffs the difference between the $4, 133 and $3,005; 6) that without any reason shown in the record, the trial court entered another written decision a month later on August 2, 1969, which was filed, awarding plaintiffs immediate restitution of the property, quieting title in plaintiffs, and treble damages, - a complete reversal, - followed by a third judgment on September 25, 1969, of similar import, which also was duly filed, - all three judgments persisting on the record on an equal basis, except for the dates, without any showing of vacating or amending except by way of implication because of inconsistency. Plaintiff and Appellant, August 6, 1970 Ellison K. Plaintiff wife appeals from a judgment awarding her a divorce. On appeal, she expresses concern that the findings of the trial court are insufficient to sustain a decree of divorce. She further asserts that the failure of the trial court to grant her a financial award, together with her costs and attorney's fees, was arbitrary and inequitable. The trial court found that the marriage endured less than four months, and during this interim, there were three separations. The court determined that the marriage was never successful and could only be considered a constant failure; that the union was an unfortunate one in the first instance and did not improve during its short existence. The court further found that each was guilty of conduct constituting mental cruelty to the other and that such conduct was approximately equal on each side. survey of the record reveals ample evidence to support the afore- mentioned findings. this court observed: In Wilson v. Wilson When it appeared that the purposes of matrimony had been destroyed to the extent that further living together was intolerable, it was in accordance with the court's duty and prerogative to grant plaintiff a divorce. . . . Plaintiff further contends that it was inequitable and unjust for the one half of her attorney's fees and to deny her costs and claim for alimony or a property settlement. trial court to award her only The trial court found that both parties had put all of their income into their expenses and that at trial each had attempted to explain the finances in a light most favorable to himself. The court determined that it would make no effort to distinguish among the moneys earned and spent during marriage or to order any payment by either party to the other. The court denied plaintiff alimony. In Christensen v. Christensen 2 this court stated: Whether we as individual judges would or would not have arrived at the exact same formula as to what the most practical and just treatment of the economic aspects of this situation is not the question on this appeal. Even though it is the established rule that divorce cases being in equity, it is the duty of this court to review and weigh the evidence, it is equally true that we have invariably recognized the advantaged position of the trial judge and given deference to his findings and judgment, declaring that they should not be upset unless the evidence clearly preponderates against them, or unless the decree works such an injustice that equity and good conscience demand that it be revised. It would be impossible to reconcile the facts here ur the unexplained multijudgment excursion into a realm of inconsistency - even ir. this rapidly changing. world,. or even by way of the tempting freewheeling and convenient as'-es.-- L. M. Cummings, Clerk CALLISTER, Justice: ng Under the circumstances of this case, wc believe the correct and equitable thing to do is to remand this case for the purpose of liking additional evidence, if required, as to the amounts called lor under llie let ms of the contract, the amounts paid thereon, the delinquency, if any. any interest due under the contract, a reasonable attorney's fee for enforcing the contract against any one in default, with an accounting to be accomplished with an auait by appointment of an independent accountant or olherwise,as the trial court deems advisable, costs as the trial for entering findings and conclusions thereon, and o , court deems ecjuiiable, applying any amount or iin..iiiiis piescrliy deposited with the court, in paying any balance due in iavor ol piaii.iuis. alter which defendants, if in delaull, shall have a reasonable time, designated by the ivuri, to pay any balance due ui.dt-- ihe contract, - failing which me pi.iiiums snail be decreed to t ,!or.: made by have lull restitution ul the pruneiiy, with all paymi.oM as .d defendants assessed and aepi by piaii.ulls iujuica' uatuugeii in accordance and it is so ordered. with the plain terms uf the contract, Pickens, Defendant and Respondent. ng vehicle of playing the sweet, protective refrain that the trial court will bn sustained if there be any substantial evidence to support his conclusion, since This is a case where some of he was in a better position, etc. , etc of some the the evidence supports the trial court time, and some ol it supports him all of the time, but all of it supports him none of the time. FILED v. This action was punctuated all the way through by inconsistent and accountings on both sides, by an almost complete and largely certainly abundant use of centipedal discovery procedures, a liberal use or abuse of unamorous niceties, and an ambivalent proclivity for judicial switch, such as to leave this court in a sobbing, equitable, condition, - bereft of any solid basis for conclusion other than a secret one. - that the trial court must have muttered a vow to put those on the hill to the task of placating the unplacatable parties to this unfortunate litigation. soul-searchi- No. 11985 Alice T. Pickens, A Although it be conceded that the defendants were constantly in arrears, several circumstances seem to be clear: 1) The record is unclear and almost immorally confusing; 2) the arrearages, - justifiably or no, - were allowed to persist, if they existed, for nearly 14 years; i) the sellers had mortgaged the property; 4) this mortgage, if deducted from the balance due, would have left a relatively small balance due under the contract as com- self-servi- THREE ... In a statement from the bench, the trial court specifically rejected as inaccurate the accounting rendered by plaintiff and observed that each -; ty, as far as financial matters were concerned, contributed to his .Opacity and that each party should be left in his present financial position. The evidence further revealed that plaintiff received approximately $100 more a month take-hopay than ctetendant; in addition, plaintiff received child support and rental income. Or. the other hand, defendant was obligated due to a previcus marriage to pay $140 per month alimony and $40 child support, llrder the complete circumstances of this case as revealed by the record, there is not a scintilla of evidence to support plaintiff's assertion that the financial disposition was inequitable. The judgment of the trial court is affirmed and costs are awarded to respondent. . -- me WE CONCUR: i Jn-n-- J. Allan Crockett, In concluding as we do, we might suggest that vitriol is expensive these days, and the application of a bit of friendly salve on the irritations of the parties might the more economically heal their ills, what with the spiraling cost of professional medication. Chief Justice R. L. Tuckett, Justice F. Henri Henriod, Justice WE CONCUR: J. Allan Crockett, Chief Justice E. R. Callister, Jr., Justice R. L. Tuckett, Justice ELLETT, Justice: (Concurring) I concur but wish to make clear that the trial court is being affirmed because he found that each party was guilty of conduct which had caused mental cruelty to the other, and not by reason of any incompatibility as may be indicated by the quotation from the case of Wilson v. Wilson, 5 Utah 2d 79, 82, 296 P. 2d 977 (1956). The Wilson case did not hold that a divorce could be granted on any grounds other than those set forth in Chapter 3, Title 30, U. C. A. 1953 as amended. (See Curry v. Curry, 7 Utah 2d 198, 200, 321 P. 2d 939). A. H. Ellett, Justice $1, 12H. Deli I'danis deposited $1 , 500 in court to cover sui h contingencies. IJtai !d JrtS, 26 1J. 2d 775 (b4). 2. Sew Dragon v, Kassi ll, 1. 1 1. 2. 5 Utah 2d 79, 82, 296 P. 2d 977 (1956). 21 Utah 2d 263, 265, 444 P. 2d 511 (1968). I |