Mosdell v. Mosdell

----ooOoo----

Kathleen Williams Mosdell,
Plaintiff and Appellee,

v.

Lynette Mosdell,
personal representative of the Estate
of Dale McBride Mosdell,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991100-CA

F I L E D
April 12, 2001 2001 UT App 115 -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
Samuel G. Draper, St. George, for Appellant
Michael W. Park and Karl H. Mueller, St. George, for Appellee

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Before Judges Bench, Davis, and Thorne.

DAVIS, Judge:

Defendant appeals the trial court's modification of the divorce decree based on eight alleged errors: (1) failure to make findings of fact and conclusions of law; (2) allowing Plaintiff to withdraw certain pretrial admissions; (3) awarding Plaintiff one-half of Defendant's retirement account; (4) awarding Plaintiff alimony due to Defendant's receipt of disability income; (5) refusing to adjust the alimony obligation; (6) granting a protective order to prevent discovery; (7) denying Defendant's summary judgment motion; and (8) awarding attorney fees to Plaintiff.

At oral argument, the parties agreed that the only issues remaining deal with modifications relating to Defendant's disability income (to the extent, if any, a property interest exists therein), retirement, and the trial court's award of attorney fees to Plaintiff.

Plaintiff concedes in her brief that the trial court did not enter specific findings of fact concerning its award of attorney fees to Plaintiff. With respect to the remaining issues, the trial court made no oral findings and based its "Order Modifying Decree of Divorce" on its written findings "that a substantial change in circumstances has occurred since the issuance of the May 21, 1997 Decree of Divorce--namely that a substantial change has occurred in the reported financial circumstances and place of residence of the parties, and that the former Decree was based upon misrepresentations made by [Defendant] regarding his finances."(1)

"[T]he trial court in exercising its discretion must make the findings of fact explicit in support of its legal conclusions." Willey v. Willey, 951 P.2d 226, 230 (Utah 1997). "It is essential that such determinations be based on proper findings of fact and conclusions of law." Montoya v. Montoya, 696 P.2d 1193, 1194-95 (Utah 1985). Here, the trial court's findings of fact and conclusions of law are insufficient to support its order modifying the divorce decree. With such meager findings, this court cannot meaningfully review whether the trial court abused its discretion. See Willey, 951 P.2d at 230.

"Although this Court has power in an equity case such as this to weigh the evidence and substitute our judgment for that of the trial court, we decline to do so where we have no means of knowing upon which facts the trial judge relied in entering his judgment." Montoya, 696 P.2d at 1195 (citation omitted). Thus, we vacate the order entered below and remand this case to the trial court with instructions to enter written findings of fact to support its rulings relative to Defendant's disability (to the extent a property interest exists therein), retirement, and its award of attorney fees to Plaintiff, and to enter a new order accordingly.
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. While the parties are free to argue inconsistent theories, it is inappropriate for the court to, in effect, adopt the same. Here, either the decree was obtained by fraud and should be set aside, or the facts which have come to light since the decree amount to changed circumstances not contemplated in the decree.