Bowen & Hortin v. Jones

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Michael Bowen and Kristen Hortin,
Plaintiffs and Appellees,

v.

Teak D. Jones,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990640-CA

F I L E D
November 9, 2000 2000 UT App 315 -----

Second District, Ogden Department
The Honorable Pamela G. Heffernan

Attorneys:
Mark H. Stratford, Ogden, for Appellant
Roger F. Baron, Brigham City, for Appellee Bowen
Kristen Hortin, Riverdale, Appellee Pro Se

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Before Judges Greenwood, Bench, and Billings.

GREENWOOD, Presiding Judge:

Defendant Teak D. Jones appeals a grant of summary judgment in favor of plaintiffs Michael Bowen and Kristen Hortin, arguing that the trial court erred because Bowen's signature was not necessary to convey the home from Hortin to Jones's assignee, Harrison. We affirm.

Utah's statute of frauds requires that a conveyance of real property must be in writing and signed by the party to be charged with the writing.

No estate or interest in real property . . . shall be created, granted, assigned, surrendered or declared otherwise than by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.

Utah Code Ann. § 25-5-1 (1998); see also Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991) (when ex-husband retains joint interest in property, "his written consent to the property's sale [is] necessary . . . because the Utah statute of frauds so requires"). Although paragraph 12 of the divorce decree states that "[p]laintiff [Hortin] is awarded possession of the residential home and real property," the decree did not convey her full ownership. Cf. Booth v. Booth, 722 P.2d 771, 772 (Utah 1986) (noting "that possession was awarded to plaintiff but ownership remained jointly with the parties"). Because Bowen was a record owner of the home, his signature was required to convey the property to Harrison. Cf. id. (where ex-husband is joint tenant on county land records, his signature is required to convey property to another).

Jones also argues the trial court erred by failing to determine whether alimony had ceased, thus cutting off Bowen's interest in the home. There is no indication that alimony had ceased, but even if it had ceased, that alone would not have automatically extinguished Bowen's interest in the property. In order for the decree to affect Bowen's interest against a third party, the decree or other appropriate document must be recorded. See id.; see also Krantz, 819 P.2d at 353 (noting that even though divorce decree may have terminated ex-husband's interest by awarding property to ex-wife, ex-husband had not formally deeded property to ex-wife).

In the present case, title to the home remains in both Bowen's and Hortin's names as joint tenants. And, as previously stated, the divorce decree merely awards Hortin possession, not full ownership. Although Hortin was entitled to obtain sole ownership of the home under circumstances specified in the divorce decree, that has not yet occurred. Under these facts, Bowen's signature is necessary to convey the property to a new owner.

Given our conclusion on this issue, we need not address the other issues raised by Jones in this appeal.

Therefore, the trial court's grant of summary judgment is affirmed.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge