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Show PAGE TWELVE INTERMOUNTAIN COMMERCIAL RECORD MONDAY, NOVEMBER 11, 1974 In the Supreme Court of The State of Utah Glen L. Hall and Verona W. Hall, husband and wife, Plaintiffs and Appellants, WE CONCUR: No; 13646 FILED November 5, 1974 Grace M. Bingham, E. R. Callister, Chief Justice Allan E. Mecham, Clerk Defendant and Respondent. Justice Concurring in result, A. H. Ellett, CROCKETT, Justice: TUCKETT, Justice: The plaintiffs initiated these proceedings in the District Court of Weber County seeking injunctive relief against the defendant to restrain her from destroying and interfering with a certain fence which existed between plaintiffs' property and that of the defendant. The plaintiffs also seek to have their title quieted and for damages against the defendant for slander of title. The trial court granted the defendant's motion for a summary judgment, and the plaintiffs ' appeal. Plaintiffs and the defendant are owners of contiguous tracts of land. The plaintiffs acquired the land they now occupy in 1937 as well as the land now claimed by the defendant. In 1962, the plaintiffs conveyed by warranty deed a parcel of the lands belonging to them to Simmons and Wiberg Investment Corporation. Through mesne conveyances the defendant acquired the property which had been conveyed to Simmons and Wiberg. At or about the time of the conveyance to Simmons and Wiberg that corporation executed a unilateral agreement or declaration to the effect that a certain fence line along the south boundaries of the property would constitute the property line and boundary dividing that property from that retained by the plaintiffs. That contract was not recorded. After the defendant purchased the property she now occupies she had her south boundary line established by a survey. It developed that the south boundary of her property was to the south of the old fence line. The defendant undertook to establish a new boundary by erecting a fence along the survey line. The plaintiffs commenced these proceedings to prevent the defendant from accomplishing her purpose. It is the plaintiffs' contention that there has existed a boundary by acquiescence between the contiguous parcels of land and that the defendant had no right to claim ownership of that parcel lying between the' boundary by acquiescence and that described in the deeds. so-call- ed This is not a boundary by acquiescence case. Even though the plaintiffs claim that the boundary by acquiescence had been established prior to the time they conveyed to Simmons and Wiberg, nevertheless they conveyed by warranty deed and the calls in their deed did not conform to the boundary they now claim was established by acquiescence. The plaintiffs having conveyed away the tract of land now owned by defendant without regard to their claimed boundary by acquiescence they cannot now claim they are entitled to relief from their own conveyance. The order of the court below is affirmed. Delores Blood Mitchell, Plaintiff and' Respondent, Respondent is entitled to costs. No. 13565 FILED v. November 7, 1974 William Keith Mitchell, Defendant and Appellant. Allan E. Mecham, Clerk CALLISTER, Chief Justice: Plaintiff filed a petition to modify the alimony and child support payments awarded to her in a decree of divorce entered in February, 1970. The original decree awarded plaintiff $1 per year alimony and $90 per month for each of five minor children. Upon hearing of the petition, the trial court increased plaintiff's alimony to $100 per month and child support to $150 per child for the four minor children residing with her. The trial court found that since the time of entry of the original decree, defendant's earnings had increased from a base salary of $13, 196 per year plus bonus to a base salary of $19, 355 per year; that the cost of living had increased considerably; and that plaintiff's living expenses for herself and minor children had Increased to an amount in excess of $800 per month. The trial court concluded that there had been a substantial change of circumstances with a substantial increase in the cost of living, which justified an increment in the award. Defendant appeals from the order decreeing the aforementioned modification. He contends that the amount of alimony to which plaintiff is entitled should be based upon her station in life at the time the decree of divorce was entered and should not be measured by defendant's present wealth and earning capacity. Defendant claims that the .sole ground for modification of alimony was the increase in his income, and such a factor is relevant only insofar as ability to pay is concerned; and that there must be a change of circumstances to justify an increase in alimony. Defendant further urges that there must be a material change of circumstances to modify an award of child support, and such burden was not sustained by plaintiff. Defendant finally contends that in the original decree plaintiff was awarded the family home in lieu of substantial alimony payments, and such a property settlement should be deemed res judicata and held to preclude any subsequent modification of alimony. Section 30-3-- 5, U. C. A. 1953, as amended 1969, provides: When a decree of divorce is made, the court may make su.qh orders in relation to the children, property and parties, any the maintenance of the parties and be children, as In accordance with this statute, this court has held that a proceeding to modify a divorce decree is equitable and the same authority is conferred upon the trial court to make subsequent changes as respect to support and maintenance as it could have dealt with them originally. 1 Under Article VIII, Section 9, Constitution of Utah, it is both the duty and prerogative of this but expressing reservations, I do not have any strong conviction of dissent from the result reached However, because of my apprehensions as to how the main opinion as here. written may be applied to other fact situations, I make the following comments: The fundamental proposition of the main opinion seems to be that if one deeds away his property, part of which is overlapped by an ancient fence, he conveys the entire property, to the deed including according description, the overlapped strip. With this Tdo not disagree. But my difficulty is with the assertion that "this is not a boundary by acquiescence case," which is what the plaintiffs asserted and relied on; and the statement that "the plaintiffs having conveyed away the tract of land now owned by defendant without regard to their claimed boundary by acquiescence, they cannot now claim they are entitled to relief from their own conveyance." It seems to me that this is susceptible of being understood as meaning that after any such grantor has so conveyed his property, he may always thereafter be precluded from claiming boundary by acquiescence, because he could not challenge his own deed. Whereas, it is my view that after such a deed is made, if the fence continues to exist in such manner that the parties should be deemed to regard it as a boundary, and this persists for a sufficient length of time, the doctrine of boundary by acquiescence applies. 1 I can see no reason why it should not apply to a grantor, as well as to a grantee, or any other property holder, , however that status came about. In this case there could be only eleven years between the plaintiffs' of the deed to Simmons and Wiberg (defendant's predecessors) and granting the defendant's challenge of the boundary as not in conformity with the conveyance, which she asserted with reasonable dispatch and diligence after acquiring the property. Wherefore, as indicated above, I have no strong disagreement with the trial court's ruling as a matter of law that under the undisputed facts, there could be no finding of a boundary by acquiescence as between these parties. 2 Although I think it would have been better and more satisfactory procedure for the trial court to take the evidence and find the facts, instead of so ruling on the motion for summary judgment. 1. As to essentials of 389 P. 2d 143. that doctrine see Fuoco v. Williams, 15 Utah 2d 156, 2. That no exact period of years is required to constitute the "long period of time", necessary to boundary by acquiescence, but the common law prescriptive period of 20 years is a general guideline see King v. Fronk, 14 Utah 2d 135, 378 P. 2d ' 893. Harmon v. Harmon, 26 Utah 2d 436, 491 P. 2d 231 (1971). court in an equitable action to review the law and the facts and make its own findings and substitute its judgment for that of the trial court. However, in a divorce action, the trial court has considerable latitude of discretion in adjusting financial and property interests, and its actions are indulged with a presumption of validity. The burden is. upon appellant to prove that the evidence clearly preponderates against the findings as made; or there was a misunderstanding or misapplication of the law resulting in substantial and or a serious error; has prejudicial resulted as to manifest a clear inequity abuse of discretion. 2 1. In the instant action, defendant has not included in the record on a appeal transcript of the hearing for the petition for modification. Defendant's points on appeal involve a factual determination, which this court obviously cannot undertake without a transcript of the hearing. The determination of the trial court that there had been a substantial change of circumstances, which justified the increase of support and maintenance, is presumed valid. This court must assume that the trial court, in the petition evaluating for modification for support, considered the parties' respective economic resources and determined what constituted the equitable share each should contribute to the household to maintain the family according to their station in 3 life. The order of the trial court is affirmed, plaintiff. Costs are awarded to WE CONCUR: F. Henri Henriod, Justice A. H. Ellett, J. Justice Allan Crockett, Justice R. L. Tuckett, Justice 2.. Harding v. Harding, 26 Utah 2d 277, 488 P. 2d 308 (1971)- - bearle v. 522 P. 2d 697 (1974). Searle, 3. Ring v. Ring, 29 Utah 2d 436, 511 P. 2d 155 (1973). Third District Court Calendar Criminal may equitable. The court shall have continuing jurisdiction to make such subsequent changes or new orders with respect to the support and maintenance of the parties, the custody of the children and their support and maintenance, or the distribution of the property as shall be reasonable and necessary. F. Henri Henriod Division 26776 - Dennis R. Little Aggravated Assault Atty; L. Brown 26810 - John C. O'Day Unlawful distribution Atty; C. Bown Friday, November 15. 27006 - Raymond" Assault Casey 197fr Atty; L. Keller - Keith Ifoel Brown Disorderly conduct Atty; H. Wilkinson 27I86 - Leo Lawrence Chauve- tte, charge forgery Atty; J. Kunkler 2709 - Gaylen Jonas Burglary & Theft Atty; B. Lubeck 26961 |