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Brigham Young University Law SchoolBYU Law Digital CommonsUtah Court of Appeals Briefs1988Carolyn Joyce Bettinger nka Carolyn Boies v. CassBettinger : Reply BriefUtah Court of AppealsFollow this and additional works at: https://digitalcommons.law.byu.edu/byu ca1Part of the Law CommonsOriginal Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Craig M. Peterson E. Paul Wood; Littlefield and Peterson; Attorneys for Plaintiff/Appellant.Robert M. McDonald; McDonald and Bullen; Attorneys for Defendant/Respondent.Recommended CitationBrief of Appellant, Bettinger v. Bettinger, No. 880297 (Utah Court of Appeals, 1988).https://digitalcommons.law.byu.edu/byu ca1/1079This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court ofAppeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah court briefs/policies.html. Please contact the Repository Manager at hunterlawlibrary@byu.edu withquestions or feedback.

BRIEFTAHOCUMENTFUD ?Q- Q- I O C K E T NO. ?Q wff-T IIN THE UTAH COURT OF APPEALS, mAUINA N D FOR THE STATE OF UTAH-ooOoo-CAROLYN JOYCE BETTINGER nkaCAROLYN BOIES,APPELLANT'S BRIEFPlaintiff/Appellant,CASS BETTINGER,Civil No. 88-0297-CACategory 14(b)Defendant/Respondent ooOoo-Attorneys forDefendant/RespondentRobert M. McDonaldMCDONALD & BULLENAmerican Plaza III47 West 200 South, #450Salt Lake City, Utah 84101Attorneys forPlaintiff/AppellantCraig M. PetersonE. Paul WoodLITTLEFIELD & PETERSON426'South 500 EastSalt Lake City, Utah 84102Telephone: (801) 531-0435DEPOSITED BY THESTATE OF UTAHAU616 1990FlJUN2 61989MaryT. NoonanClerk of *\% CourtUtah Court f Appeals

- \\E'( ()\}t APPEALSurUTAH;0-CAROLYN JOYCE BETTTNGKR nkaAPPELLANT'S BRIEFCAROLYN BOIES,Plaintiff/Appel1ant,v,CASS IETTINGER,r -f *JCivil K:-:, 38-0297 CACacegor; : 4(1 l'Respondent .00.d e f e n d a n t /Respondent-Attorneys forPI a ) nti f f -'*\pp . - ;RobertC r a i g H. j ) e t : e r s w hE. P a u l Wood '\L-.Uiu4ldMCDONAT.p & BULLENAmerican laza *47 West 200 Souiu, "450S-i- Lake City, Utah 8 4 1 0 1LITTLEFIELD & PETERSON426 South r:OQ EastSalt Lake City, UtahoAi-.jl' pphone:(801) 531-0435:i

TABLE OF CONTENTSSUMMARY OF ARGUMENT1ARGUMENT2I.II.THE INTENT 0* THE PARTIES IN DRAFTING PARAGRAPHPARAGRAPH 7 IS UNCLEAR WITHOUT ADMISSION OFEXTRINSIC EVIDENCE2PARAGRAPH 7 OF THE DECREE REQUIRES THAT ALLIMPROVEMENTS BE DEDUCTED FROM THE DEFENDANT'SEQUITY4CONCLUSION536702-ii-

CRAIG M. PETERSON - 2579E. PAUL, WOOD - 3537Attorneys for Plaintiff/AppellantLI TLEFIELD & PETERSON426 South 500 EastSalt Lake City, Utah 84102Telephone: (801) 531-0435IN THE UTAH COURT OF APPEALSIN AND FOR THE STATE OF UTAHooOooCAROLYN JOYCE BETTINGER nkaCAROLYN BOIES,Plaintiff/Appellant,))))v.)CASS BETTINGER,)))Defendant/Respondent.REPLY BRIEFOF APPELLANTCivil No. 88-0297-CACategory 14(b)ooOooSUMMARY OF ARGUMENT1.The confusing and inconsistent language in paragraph7 of the Divorce Decree, interchanging the terms "liquidation"and "foreclosable" requires the court to resort to extrinsicevidence to interpret the Decree. The extrinsic evidence on theparties intent shows that the value of the Defendant's equityshould be determined at the time of "liquidation" and not whenthe Defendant's lien became "foreclosable".2.The Defendant intended to enjoy the benefit of anincrease of equity in the home and should also be responsible fordetriments which occur from decrease in value, including allcosts associated with improving the home for sale.-1-

ARGUMENTI.THE INTENT OF THE PARTIES IN DRAFTING PARAGRAPH 7 ISUNCLEAR WITHOUT ADMISSION OF EXTRINSIC EVIDENCE.The general thrust of Respondent's Brief is that theCourt could interpret paragraph 7 without resorting to extrinsicevidence.However, the Defendant submitted affidavits andattended four separate evidentiary hearings on the matter ofinterpretation of paragraph 7 and associated issues.On February9, 1987, the Appellant, Mrs. Boies, submitted an Affidavitclearly outlining the intent of the parties in drafting paragraph7.Mrs. Boies' Affidavit was the only evidence clearlysupporting intent submitted by either party during the hearing(Exhibit B, Appellant's Brief).The unquestionably confusing use of the term"liquidation" and "foreclosable" in paragraph 7 is the matter atissue.Both parties have submitted their respective factual andlegal basis for interpretation of the terms of paragraph 7.However, it remains clear that the real issue is resolution ofthe meaning of inclusion of the terms "foreclosable" and"liquidation" which can only be gleaned by resorting to extrinsicevidence.The Respondent states in his Brief that:-2-

"It is obvious that the parties intended thatDefendant's equity in the marital domicile would bedetermined upon the occurrence of one of three events:(a) when the youngest child reaches age 18; (b) whenthe home is sold; or (c) when the Plaintiff remarries."(Point I.A., P.8, Respondent's Brief)This statement is made in the portion of Respondent'sBrief urging adoption of the trial court's interpretation ofparagraph 7 based upon its "plain language".However, Mr.Bettinger's assertion is directly contrary to the language ofparagraph 7:"Plaintiff is awarded the real property of the marriagein the form of a home located at 2740 East 4510 South,Salt Lake City, Utah, subject to a lien thereon forone-half of the equity that may be in the house at thetime of liquidation (which contemplates an increasingequity as the value increases). The equity is definedas the fair market value or sales price at the time theDefendant becomes entitled to liquidate his lien as setforth herein, thus the amount of mortgages, costs ofimprovements made by Plaintiff and costs of sale. Thislien shall not be foreclosable until the youngest childreaches age 18, or until the home is sold or untilPlaintiff remarries."Contrary to the denial of necessity of resorting toextrinsic evidence urged by the Defendant (Argument I.B.), theambiguity of the paragraph is obvious.The mere fact thatPlaintiff's counsel drafted the document does not change itsambiguity even if the inference is that it should be construedagainst the drafter.The only extrinsic evidence on the issue of intent ofthe parties is contained in the April 9, 1987 Affidavit of Mrs.Boies where she explained the basis of the inclusion of the term"liquidation" as the determining point of Mr. Bettinger's equity-3-

was because he viewed the home as an investment and specificallydesired to participate in the increase which he assumed wouldcontinue through the 1980's on real properties.(Appellant'sBrief, PP.7-8)The Court's determination that equity should bedetermined as of the date of Mrs. Bettinger's remarriage isclearly erroneous under the evidence submitted on the point ofintent of the parties' drafting of paragraph 7 of the Decree.The Court's holding should be reversed and an Order enteredconsistent with the evidence before the court.II.PARAGRAPH 7 OF HE DECREE REQUIRES THAT ALL IMPROVEMENTSBE DEDUCTED ROM THE DEFENDANT'S EQUITY.Mr. Bettinger argues that the Court should not haveincluded the costs of any improvements as a deduction against Mr.Bettinger's equity or in the alternative, the greatest amount ofdeduction should be for improvements up to the date ofPlaintiff's remarriage.(Respondent's Brief, Point II)However,the Argument ignores the factual basis upon which the partiesdrafted the paragraph 7:Mr. Bettinger desired to participate inthe increasing value which he assumed would occur in the realproperty and, as a result, agreed to pay for costs ofimprovements made by the Plaintiff.It is true that in most instances, as Mr. Bettingerasserts, that imorov ments to the collateral oni, vrn it the-4-

debtor (Mrs. Boies).However, in those instances, the creditordoes not participate in increase in value of the collateral.Inthe case before the Court, it is the clear intent of the partiesthat Mr. Bettinger participate in any increase in value to thepoint of liquidation.Consistent with the intent of the parties,he agreed also to pay for costs of improvement because of hisdesire to participate in the increasing equity.Finally, the Court should keep in mind that if Mrs.Boies would have been in control of the sale, she would haveoffered the property at a significantly lower price wheninitially listing the house for sale had it not been for theurgings of Mr. Bettinger.When Mrs. Boies listed the house forsale, she believed the listing price should be 90,000.00 to 100,000.00 in order to receive a sales price of 85,000.00 whichshe felt was the appropriate fair market value.February 9, 1988 Hearing)(TR. 35,Mrs. Boies listed the house initiallyat 125,000.00 pursuant to the letter sent by Mr. Boies.(Exhibit D, Appellant Brief; TR. 35, 36, 37, 38.)CONCLUSIONThe Trial Court's determination that equity should bevalued as of the date of remarriage of Mrs. Boies is contrary tothe evidence on intent when drafting paragraph 7 of the Decree,and should be reversed and remanded with instructions for anOrder to be entered consistent with the evidence before theCourt.The Court should also reverse the Trial Court-5-

interpretation of the term "improvements", and include allimprovements made by Mrs, Boies to the date of sale consistentwith the language of the Decree and intent of the parties.DATED this j day of June, 1989.LITTLEFIET.D h PETERSON*mdJm-—Attorneys forHlaintiff/Appellant36701-6-

CRAIG M. PETERSON - 2579E. PAUL WOOD - 3537Attorney for Plaintiff/AppellantLITTLEFIELD & PETERSON426 South 500 EastSalt Lake City, Utah 84102Telephone: (801) 531-0435IN THE UTAH COURT OF APPEALSIN AND FOR THE STATE OF UTAH-ooOooCAROLYN JOYCE BETTINGER nkaCAROLYN BOIES,CERTIFICATE OF SERVICEPlaintiff/Appellant,v.CASS BETTINGER,Civil No. 88-0297-CACategory 14(b)Defendant/Respondent.ooOooI hereby certify that I caused to be mailed a true andcorrect copy of the foregoing APPELLANT'S BRIEF to Robert M.McDonald, Esq. MCDONALD & BULLEN, American Plaza III, 47 West 200South, #450, Salt Lake City, UtahJ day of June, 1989.36703-1-84101, postage prepaid, this

forth herein, thus the amount of mortgages, costs of improvements made by Plaintiff and costs of sale. This lien shall not be foreclosable until the youngest child reaches age 18, or until the home is sold or until Plaintiff remarries." Contrary to the denial of necessity of resorting to ex