Greener v. Greener , 116 Utah 571 ( 1949 )

The trial court determined two controlling issues of fact against plaintiff: (1) That the defendant was not guilty of the acts of cruelty claimed by plaintiff. A contrary finding on this issue would have clearly entitled plaintiff to a divorce. (2) That the parties did not intend to create a joint ownership in the moneys on deposit in the joint bank accounts. A contrary finding on this issue would have required the court to find that plaintiff was half owner of those moneys. The second proposition, the trial court held and we hold, requires clear and convincing evidence of a contrary intention in order to defeat her claim of joint ownership although the evidence is clear that originally all of this money belonged to him. From a reading of the record without the benefit of seeing and hearing the witnesses give their testimony I would have decided both of these issues the other way, but in view of the fact that the trial judge saw and heard the witnesses and therefore was in a better position to evaluate the weight to be given to their testimony, I conclude his findings on those issues are supported by the preponderance of the evidence.

As pointed out in the prevailing opinion we have many times held that where there is a conflict in the testimony on a material issue the findings of the trial court in a divorce action should be sustained unless they are clearly contrary to the preponderance of the evidence. But I wonder if that is the test which should be applied in a case of this kind on a question of fact as distinguished from an issue which requires the exercise of the discretion of the trial judge. Under Art. VIII, Sec. 9, of our State Constitution in

"equity cases the appeal may be on questions of both law and fact; in cases at law the appeal shall be on questions of law alone."

While I think it would be better in all cases on appeal, whether legal or equitable, if we were to follow the test above stated, which I understand to be the rule in the federal courts, I do not think that is the rule required either in law or equity cases under the above constitutional provision. Such a practice would greatly simplify the problems of this court and would have very little, if any, effect on the result. It is impossible for any court or judge to consistently determine in all cases whether they are actions at law or suits in equity and there seems to be no good reason for making such distinction. Under the above constitutional provision, as I understand it, in law cases on appeal we must sustain the findings of the trial judge if such findings could be reasonably found from the evidence, but in equity cases we must independently determine the issues of fact from a review of the evidence, keeping in mind that the trial court is in a better position than we to evaluate the weight of the testimony of the various witnesses. Stanley v. Stanley, 97 Utah 520, 94 P.2d 465; Walton v. Coffman,110 Utah 1, 169 P.2d 97.

The rule stated above, while proper on matters involving the discretion of the court, is not the rule applicable in either law or equity cases. In my opinion all cases are either law or equity in their nature and we should apply one or the other rule. A divorce action is statutory but highly equitable in its nature and therefore I conclude that we should apply the rule provided for equity cases by independently determining the issues of fact from the record giving the proper weight to the findings of the trial judge who has seen and heard the witnesses give their testimony.

I agree that where a deposit is held as a joint bank account under a written instrument signed by both parties thereto, which unambiguously provides that such deposit is their joint property and belongs to the survivor on the death of one of them, that clear and convincing evidence of a contrary intention is required to sustain a holding that during the lifetime of both parties such account was still the sole property of the original owner. However, we should not overlook the fact that in previous cases, involving a gift after the death of the donor, we have applied a contrary rule. Except for the case of Holt v. Bayles, 85 Utah 364,

39 P.2d 715, which held that under such instrument the intention of the parties is not material because the terms of a written instrument cannot be varied by parol evidence, Neill v.Royce, 101 Utah 181, 120 P.2d 327, which announced the rule here followed, our previous cases have approached the question from a different viewpoint and required clear and convincing evidence from the party claiming a gift. In such previous cases, we have held that even in the face of a written instrument signed by the original owner which without ambiguity provided that the funds in the joint account belonged to either or the survivor, of the parties thereto, still in order to sustain a claim by the survivor after the death of the original owner it must be shown by clear and convincing evidence that the original owner intended to make a present gift of some legal or equitable title to the funds in the account. Christensen v. Ogden State Bank,75 Utah 478, 286 P. 638; Olson v. Scott, 61 Utah 42, 210 P. 987. See also the following cases to the same effect with slightly different fact situations: Wood v. Wood, 87 Utah 394,49 P.2d 416; Helper State Bank v. Crus, 95 Utah 320, 81 P.2d 359;Boyle v. Dinsdale, 45 Utah 112, 143 P. 136; Holman v.Deseret Savings Bank, 41 Utah 340, 124 P. 765.

What differences in the fact situation are necessary in order to change the requirement of clear and convincing proof from the parties on one side of such a controversy to the parties on the other side is not clear from these cases. Apparently the court failed to notice that such a shift had occurred. Possibly, where the original owner of the funds in the account is still alive and the court has the benefit of his testimony and there is a consideration for the transfer and no gift is involved, the original owner should be required to prove an intention contrary to the express terms of the written instrument by clear and convincing evidence, whereas, where a gift is involved, after the death of the donor a person claiming a gift during his lifetime, even though supported by the terms of an unambiguous written instrument, should still have to prove an intention to make a present gift by clear and convincing veidence. Such a distinction would harmonize this case and Neill v. Royce, supra, withChristensen v. Ogden State Bank, supra, and Olson v.Scott, supra. But in Holt v. Bayles, supra, the original owner was dead and a gift was involved but there we went further than to require clear and convincing proof of an intention contrary to the written instrument and held that since the terms of an unambiguous written instrument may not be varied by parol evidence, evidence of such intention would be immaterial. So I have great difficulty in reconciling Holt v. Bayles, supra, with the Christensen and Olson cases and the other cases to the same effect cited above.