Case Summaries
| Publication year | 1992 |
| Pages | 33 |
| Citation | Vol. 5 No. 6 Pg. 33 |
June, 1992
Clark R. Nielsen, J.
INTESTACY INHERITANCE, SURVIVING SPOUSE
The Court of Appeals affirmed the district court's refusal to find a divorce between the plaintiff and her deceased husband when a final divorce decree had never been entered. The deceased and the plaintiff agreed to terminate their marriage and the deceased filed a consent and waiver, stipulating to entry of a default divorce. He then moved to Alaska. While in Alaska, he was killed in a fishing accident before the final default decree of divorce was obtained by the plaintiff. After his death, but before the plaintiff was informed of his death, a default divorce decree was obtained. The divorce decree was thereafter vacated when his death was discovered.
The plaintiff sought to inherit as the decedent's surviving spouse. The decedent's children claimed that plaintiff was not a surviving spouse because she had filed for divorce and he had consented and stipulated that the divorce decree be entered before his death. They argued that the entry of a final decree was merely a ministerial step that had not yet been taken, and, for all practical purposes, the divorce status had been obtained by the parties.
The appeals court held that under Utah Code Ann. § 75-2-80(2)(a), plaintiff was still the surviving spouse of the decedent because there had never been a decree or order, final or interlocutory, terminating the marriage before decedent's death. The mere filing of a complaint for divorce, stipulation as to its entry, waiver, and consent do not equate to obtaining a court's order terminating marriage, interlocutory or otherwise. The divorce decree entered after death was void because a decree of divorce cannot be entered against a dead person.
Farrell v. Porter. Utah Court of Appeals, No. 910463-CA (April 9, 1992) (Judge Billings, with Judges Jackson and Russon).
DIVORCE, MARITAL PROPERTY DIVISION
The trial court did not abuse its discretion when it awarded to the husband a one-half interest in ranch property which he had conveyed to Mrs. Hogue shortly prior to their marriage as an agreed means to protect the property from the husband's judgment creditors. During the marriage (which was the parties' second marriage), they jointly purchased other personal property for use on the ranch, including vehicles, trailers, horses and training equipment, ranch equipment, and household furnishings. The trial court did not misunderstand or misapply the law resulting in a substantial or prejudicial error that was contrary to a preponderance of the findings. Marital property encompasses all the assets of every nature possessed by the parties, whenever obtained and from whatever source derived. The trial court may in its broad discretion divide the property equitably, regardless of its source or time of acquisition. The specific findings of the trial court supported the equal division of the ranch. Hogue v. Hogue, Utah Court of Appeals. No. 900593-CA (April 9, 1992) (Judge Russon, with Judges Bench and Billings).
NEWLY DISCOVERED EVIDENCE, HABEAS CORPUS
The petition of Dail Ray Stewart for a writ of habeas corpus was granted by the trial court and affirmed on appeal. Petitioner was convicted of second degree murder in the 1986 stabbing death of a prison inmate (729 P.2d 610). In his petition for habeas corpus, Stewart asserted that witnesses at his trial had improperly testified and that there was newly discovered evidence and witnesses would testify of Stewart's innocence. One witness testified that he had omitted important evidence at the trial and the second witness had not been available at the trial. The district court found that there was a substantial likelihood that had the evidence been available to Stewart at his trial, a different verdict would have resulted. Stewart's petition was granted.
The court of appeals concluded that the petitioner carries the burden of showing that the trial proceedings were in error. Reviewing Utah Supreme Court decisions regarding the standard of review, the panel concluded that the proper review standard is no different than any other appeal, (e.g., no difference is accorded to the trial court's conclusions of law, but its findings of fact will not be disturbed unless clearly erroneous). The appeals court held that the trial court properly applied the legal standard that in order to justify a release of a person under a writ of habeas corpus the evidence of his innocence must be stronger than would have been necessary to support a motion for a new trial. In this case the evidence showed an obvious injustice or a substantial and prejudicial denial of due process. Although past opinions have used different language in reviewing habeas corpus petitions, the standard of review remains constant.
Stewart v. State, Utah Court of Appeals, No. 910566-CA (April 9, 1992) (Judge Jackson, with Judges Billings and Russon).
EXPERT TESTIMONY, EXCLUSION OF TRIAL TESTIMONY
Plaintiff sued the railroad for damages, alleging that the railroad had caused the Thistle mud slide resulting in the destruction of plaintiff's property in Spanish Fork Canyon. Plaintiff claimed that the landslide was caused by defendant's rail construction activities, negligently undercutting the mountainside so as to result in the massive slide. At trial, plaintiff was precluded from calling a witness that had not been designated until shortly before trial. The appeals court held that the trial court abused its discretion in refusing to allow the expert witness to testify. Absent an order that judicially imposes a specific deadline, a trial court may not sanction a party for failing to timely disclose a witness by excluding that witness under Utah R. Civ. P. 37(b) (2).
The trial court has broad discretion in case management decisions. However, excluding a witness from testifying is extreme in...
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