Sill v. Sill

ORME, Judge

(concurring specially):

1 22 I agree we should remand for the trial court to exercise its subject matter jurisdiction, and I concur in most of what is said in the lead opinion.¹ I wish, however, to highlight a couple of points that I believe merit emphasis.

123 This case presents a conflict between two very important precepts in our jurisprudence: First, parties to litigation are free-indeed, encouraged-to stipulate to the resolution of their disputes and, when they do so, the courts of this state will enforce those agreements as written and will not paternal-istically substitute their judgment for that of the parties. Second, courts are jealous of their subject matter jurisdiction and strongly disinclined to let private litigants deprive the courts of that jurisdiction via contract. Against the backdrop of this dichotomy, there is nothing, in my opinion, to stop grown adults, represented by competent counsel, from introducing greater predictability and stability into their post-marriage lives by stipulating away their statutory right to have alimony revisited in the future even if their circumstances materially change. See, e.g., Medley v. Medley, 2004 UT App 179, ¶ 10, 93 P.3d 847 (bolding that right to future alimony based upon material change in cireumstances pursuant to Utah Code section 30-8-5(8)(g) can be waived "by explicit reference to the statute or ... a clear reference to the concept of future alimony"); Kinsman v. Kinsman, 748 P.2d 210, 212-13 & n. 2 (Utah Ct.App.1988). That said, I agree that parties cannot stipulate away a court's subject matter jurisdiction.

1 24 I agree with my colleagues, then, that the trial court erred in dismissing Husband's modification petition for lack of jurisdiction. I also agree we should remand and direct the court to exercise its jurisdiction. From there, I may part company with the lead opinion. (I say "may" because it is unclear how much wiggle room the majority really believes a trial court should have in finding that "compelling reasons" exist to relieve a party of his or her bargain.) In my view, in exercising its subject matter jurisdiction in such a case, the trial court should routinely enforce the stipulated agreement to the same extent it would any other stipulated agreement, provided only that the intention to waive one's statutory modification rights is "'clear and unmistakable" Medley, 2004 UT App 179 at ¶ 10, 93 P.3d 847 (quoting Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983)).

1 . I do think the lead opinion spends way too much time treating Callister v. Callister, 1 Utah 2d 34, 261 P.2d 944 (1953). While an historically important opinion, Callister is essentially irrelevant to the present dispute given that, as the lead opinion recognizes in its footnote 2, that case did not involve an actual stipulation with a non-modification clause. See id. at 945, 948.