LeBreton v. LeBreton , 1979 Utah LEXIS 955 ( 1979 )

WILKINS, Justice:

Defendant appeals from an order of the District Court which equally divided the equity in certain real property between plaintiff and defendant as of the date of their divorce.

On April 28, 1969, plaintiff sued for divorce. The parties entered into a stipulation providing for the division of the subject property and the same was accepted and approved by the Court. The pertinent portion thereof reads as follows:

With regard to the house, it will be sold upon her remarriage or when the home is no longer needed for the minor children, at which time the home will be sold and the equity as of the date of the divorce will be divided equally among the parties with the further stipulation that the Plaintiff shall have all of the principal payment made by her after the date of the divorce before the costs of sale and then the remaining equity will be divided equally. [Emphasis added.]

In June of 1977, defendant filed an affidavit in support of an order to show cause why the house should not be sold and the proceeds therefrom distributed according to the provisions of the decree. Plaintiff had remarried in the interim and the children had both reached the age of majority. A hearing was held on April 14, 1978. The District Court ordered that the equity of the home be divided “by sale or buy-out” according to its value at the time of the divorce nine years earlier. It is specifically from this order that defendant appeals.

The single claim on appeal by defendant is that the District Court misconstrued the terms of the decree of divorce, and that properly read, the above-quoted language mandates a division of the equity as of the time of the sale (after subtracting principal payments made by plaintiff after the original divorce decree). The plaintiff argues contrarily, contending that the time of divorce controls the date that this division shall occur. The difference such an interpretation would make in the portion of the proceeds going to defendant would be substantial, as the equity in the home has been enhanced markedly by the dramatic increase in property values in the area during the past decade.

The District Judge verbally stated at this hearing:

Well, I have heard the statements of both of you that you would both testify, if you were to take the stand . to a different interpretation of this paragraph. . . . So, I think it would be a standoff as far as the testimony is concerned . . . but I think that with that wording in there, “the equity as of the date of this divorce,” I think that has got to tip the balance and I think that is what we are talking about. That is what I hold ... it was the equity as of the date of the divorce. ■

The District Court also stated in its Findings and Conclusions in this hearing:

The Court finds that though ambiguous the meaning of the decree is that the equity as of the date of the divorce would be the value to be divided among the parties.

Additionally, the attorney for plaintiff, who prepared the Findings, Conclusions, and Decree in the original divorce action, noted initially in this opinion, conceded in the hearing in 1978 that there was an ambiguity, and the attorney for defendant also — in essence — in this 1978 hearing acknowledged a basis for two interpretations.

We agree that there is ambiguity, and conclude that we should remand for an evi-dentiary hearing for the purpose of determining what is reasonable and necessary to do now, pursuant to Utah Code Annotated, Section 30-3-5, 1953, as amended, which provides in relevant part:

When a decree of divorce is made, 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. 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. [Emphasis added.]

Of course, we would ordinarily remand this matter to the District Court for the purpose of taking evidence of pertinent circumstances, including intent of the parties, at the time of the original divorce, but the record before us discloses that such a procedure would be useless here as there was no meaningful evidence, even that was proffered, at the 1978 hearing that would be probative. Hence, we remand, in this unusual case, for an evidentiary hearing under § 30-3-5, where findings can be made on the basis of present circumstances.

Reversed and remanded for further proceedings consistent with this opinion. No costs awarded.

CROCKETT, C. J., and MAUGHAN and STEWART, JJ., concur.