Opinion
No. 10356.
January 18, 1966.
Appeal from the Third District Court, Salt Lake County, Stewart M. Hanson, J.
Robert W. Hughes, Salt Lake City, for appellant.
Francis C. Lund, Salt Lake City, for respondent.
Appeal from a "judgment" (which in reality only was an order denying a motion for a new trial). Affirmed with costs to respondent.
This appeal is abortive, being from the denial of a motion for a new trial.
See Rule 72(a), Utah Rules of Civil Procedure, Vol. 9, pp. 776 et seq. and annotations thereto.
Nonetheless, parenthetically and dictum-wise, we are at a loss to know why, after the full hearings, testimony, findings, conclusions and judgment in which Mrs. Habbeshaw appeared to have exhausted her complaints, financial and physical, she should ask for a new trial under Rule 59(a)(4), Utah Rules of Civil Procedure. There appears to be no evidence that could not have been discovered with reasonable diligence. The court gave her $2500 for her attorney. He withdrew before appeal. She got other counsel and we think that there was nothing after the judgment that occurred warranting its vacation.
McDONOUGH, WADE and CALLISTER, JJ., concur.
I concur and desire to add this comment: The parties have been married for 28 years; have reared four children, all now adults, three of whom are married. They have acquired numerous and substantial properties having a net value of around $175,000 of which the trial court awarded approximately one-half to each. Defendant was also awarded $550 per month as alimony, a Cadillac automobile, the protection of $150,000 in insurance and $2500 attorneys fees, and plaintiff was ordered to assume all debts. Defendant's contention is that the property settlement was inequitable. It impresses me as well within the discretion of the trial court and should be sustained under the principles set forth in Tsoufakis v. Tsoufakis, 14 Utah 2d 273, 382 P.2d 412, and Wilson v. Wilson, 5 Utah 2d 79, 296 P.2d 977.