Lether v. Lether

----ooOoo----

Elizabeth Lether,
Petitioner and Appellant,

v.

Richard Tebbs Lether,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981501-CA

F I L E D
April 6, 2000
  2000 UT App 98 -----

Fourth District, Provo Department
The Honorable Anthony W. Schofield

Attorneys:
Delano S. Findlay, Salt Lake City, for Appellant
Francis J. Nielson, Salt Lake City, for Appellee

-----

Before Judges Jackson, Bench, and Billings.

BENCH, Judge:

Appellant Elizabeth Lether contends that the trial court erred in dismissing her petition to reconsider the property distribution provisions in the Stipulation and Property Settlement Agreement (the Agreement), which was incorporated in the divorce decree. She argues that Mr. Lether "knowingly misrepresented the value of the assets in the marriage[,] including the overstatement of the value of the assets which were awarded to Mrs. Lether and the understatement of assets which were awarded to him." We disagree. The Agreement provided that "there is a genuine dispute as to the value of the real and personal property," and therefore, "[t]he parties have agreed to resolve the dispute as to values by accepting the real and personal property as allocated." Simply put, the parties attached different values to the property, and these differences were accounted for in the Agreement. The trial court therefore properly determined that Mrs. Lether's fraud claim "flies right into the face of her own voluntary representation that there was a dispute as to the values," and that she cannot make a fraud claim "when the record is unequivocal that the parties each made concessions and each acknowledged a dispute as to property values." We therefore affirm the dismissal of the petition to reconsider the property distribution.

Mrs. Lether further contends that the trial court erred in granting summary judgment on her petition to modify the original alimony award due to a change of circumstances. We disagree. The trial court reasoned that Mrs. Lether's health difficulties were foreseeable, and thus not a change of circumstances. However, "[i]t is well-settled that an appellate court may affirm a trial court's ruling on any proper grounds, even though the trial court relied on some other ground." DeBry v. Noble, 889 P.2d 428, 444 (Utah 1995). This court has previously held that a change of circumstances cannot "overcome a knowing and specific waiver [of alimony] in a stipulation." Kinsman v. Kinsman, 748 P.2d 210, 212 (Utah Ct. App. 1988). Mrs. Lether clearly stipulated to such a waiver in this case: "Plaintiff [Mrs. Lether] hereby waives alimony after July 1, 1996 and forever."

The trial court therefore properly determined that Mrs. Lether's petition, filed on August 5, 1996, to modify alimony due to a change of circumstances was without merit. Accordingly, we affirm the trial court's grant of summary judgment on Mrs. Lether's petition to modify alimony.

Finally, Mrs. Lether contends that the trial court erred in finding that the Agreement was unambiguous, thereby precluding the court from considering extrinsic evidence to ascertain who was intended to receive rents from the Birrell property. Although Mrs. Lether labeled this issue as one of ambiguity, she urges mutual mistake by both parties in drafting the Agreement. The Agreement (and the decree) provided:

The Defendant shall pay alimony to the Plaintiff in the amount of $1,000.00 per month payable by the 10th of each month. Defendant shall receive $950.00 per month from the Birrell rental home until it is sold. When the Birrell rental property has been sold[,] Defendant shall pay an additional $950.00 per month to Plaintiff for alimony.

Plaintiff's alimony obligation to Defendant shall cease on July 1, 1996[(1)] and Plaintiff hereby waives alimony after July 1, 1996 and forever.

Referring to the relevant language of the Agreement quoted above, Mrs. Lether contends that the trial court should have considered extrinsic evidence demonstrating that the Agreement was meant to read that Plaintiff (not Defendant) was to receive the rents from the Birrell property. We agree that Mrs. Lether is entitled to an opportunity to prove mutual mistake. "[P]arol evidence is admissible to demonstrate that a mutual mistake resulted in a document which does not accurately reflect the intent of the parties." West One Trust Co. v. Morrison, 861 P.2d 1058, 1061 (Utah Ct. App. 1993). As the party seeking "to invoke the equitable remedy of reformation," Mrs. Lether bears the burden to "provide clear and convincing evidence of mistake." Id. We therefore reverse and remand to allow the trial court to consider extrinsic evidence as to who the parties intended to receive the Birrell property rents.

We affirm in part, reverse in part, and remand the case for further proceedings. Mr. Lether's request for attorney fees pursuant to Utah R. App. P. 33(a) is denied. The parties are to bear their own costs on appeal.
 
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. After having required Defendant to pay alimony, this phrase indicates that Plaintiff's alimony obligation would terminate on July 1, 1996. Both parties concede this error.